                                                                        ACCEPTED
                                                                    01-15-00471-CV
                                                         FIRST COURT OF APPEALS
                                                                 HOUSTON, TEXAS
                                                               5/26/2015 2:49:52 PM
                                                                        1 PRINE
                                                              CHRISTOPHER
                                                                             CLERK


 1                      REPORTER'S RECORD

 2                                                  FILED IN
                            VOLUME 1 OF 1    1st COURT OF APPEALS
                                                 HOUSTON, TEXAS
 3              TRIAL COURT CAUSE NO.   425.576-401
                                             5/26/2015 2:49:52 PM
                                             CHRISTOPHER A. PRINE
 4              APPELLATE NO.                        Clerk

 5   IN RE:                                 IN THE PROBATE COURT
     DANIEL STEVEN WEINER                   NUMBER 4 (FOUR) OF
 6   1996 TRUST                             HARRIS COUNTY, TEXAS

 7

 8

 9

10             * * * * * * * * * * * * * * * * * *

11           DANIEL WARREN'S PLEA TO THE JURISDICTION

12             * * * * * * * * * * * * * * * * * *

13

14

15

16

17          On the 13th day of May, 2015,    the following

18   proceedings came to be heard in the above-entitled and

19   numbered cause before the Honorable Christine Butts

20   Judge of Probate Court No. 4, held in Houston, Harris

21   County, Texas:
                                                      EXHIBIT
                                                                     exhibitsticker.com




22
                                                       TAB E-1
23

24          Proceedings reported by Machine Shorthand

25


         HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
                                                               2


 1                    A-P-P-E-A-R-A-N-C-E-S:

 2   Ms. Carol A. Cantrell         Ms. Sarah P. Pacheco
     Attorney at Law               Attorney at Law
 3   SBN 24043592                  SBN 00788164
     CANTRELL & CANTRELL, PLLC     Crain Caton & James
 4   3700 Buffalo Speedway         1401 McKinney; 17th Floor
     Suite 520                     Houston, Texas  77010
 5   Houston, Texas  77098         713.658.2323
     713.333.0555
 6
     ATTORNEY FOR PETITIONER       ATTORNEY FOR ANDY WEINER
 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


         HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
                                                                                              3


 1                                       VOLUME 1
                                (PLEA TO THE JURISDICTION)
 2   May 13, 2015                                                              Page    Vol.

 3   PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4    1
     PLEA TO THE JURISDICTION:
 4       ARGUMENT BY MS. CANTRELL . . . . . . . . . . . . . . . . 4                     1
         ARGUMENT BY MS. PACHECO . . . . . . . . . . . . . . . . 10                     1
 5       REBUTTAL ARGUMENT BY MS. CANTRELL . . . . . . 20                               1
         REBUTTAL ARGUMENT BY MS. PACHECO . . . . . . . 27                              1
 6   COURT Is RULING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 9      1

 7   COURT REPORTER'S CERTIFICATE . . . . . . . . . . . . . . . 38       1
                           EXHIBITS INDEX
 8   RESPONDENT'S DESCRIPTION              OFFERED              ADMITTED VOL.
     A            Original Petition for
 9                Termination of Trust            15               16      1
     B            First Amended Original
10                Petition for Modification
                  of Trust and Response
11                to Plea in Abatement
                  and Plea to the
12                Jurisdiction                    16               17      1
     c            Original Petition In
13                Intervention                    17               17      1
     D            Andy Weiner's Cross-Claims
14                Against Katherine Warren
                  F/K/A Katherine Weiner 17                        17      1
15   E            First Supplement to
                  Original Answer                 17               18      1
16   G            Rules of the Probate
                  Courts of Harris Cnty 18                         18      1
17   H            Plaintiff's Original
                  Petition                        18               19      1
18   PLAINTIFF'S DESCRIPTION               OFFERED              ADMITTED VOL.
     1            Petitioner's Notice
19                of Nonsuit Against
                  Andy Weiner                     5                5       1
20   2            Order Granting Petitioner's
                  Nonsuit and Dismissal           5                6       1
21   3            Andy Weiner's Counter
                  & Cross-Petition                5                6       1
22   4            Andy Weiner's Sec'd
                  Amended Cross-Claims
23                Against Katherine Warren
                  F/K/A Katherine Weiner 6                         6       1
24   5            Amended Order on
                  Motion to Sever                 6                7       1
25   6            Email chain                     7                X       1



           HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
                                                                   4


 1   May 13, 2015

 2                           PROCEEDINGS

 3                   THE COURT:    Calling to order Cause Number

 4   425.576 in the 401; In Re:      Daniel Steven Weiner 1996

 5   Trust.    We're here on Daniel Warren's Plea To The

 6   Jurisdiction.

 7                   MS. CANTRELL:    That is correct.   Are we

 8   ready to proceed?

 9                   THE COURT:    Yes, we are.

10             DANIEL WARREN'S PLEA TO THE JURISDICTION

11                    ARGUMENT BY MS. CANTRELL:

12                   MS. CANTRELL:    Well hopefully this will be

13   the easiest of the three Weiner Trust cases.

14                   This case involves a nonsuit at a time

15   where there were no outstanding claims of any kind.

16                   Daniel had sued Andy Weiner, and Katherine

17   Warren was a Respondent in that.      He nonsuited Katherine

18   Warren.    So, she was out.

19                   Andy Weiner had affirmative defenses but

20   no counter-claims against Daniel.

21                   Andy Weiner had cross-claims against

22   Katherine but not in Daniel's case.      They were all in

23   the case that David filed.      And so at the moment in time

24   that he nonsuited, and at the time he was dismissed,

25   under Greenberg versus Brookshire, the case was over.


         HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
                                                                    5


 1   All the controversies were settled; all the cllaims were

 2   gone and the parties were gone.

 3                  I would like to go ahead and irtroduce as

 4   Exhibit 1, the date order so that there's no question

 5   about that just to make sure.      What I have in Exhibit 1

 6   for you, Sarah,   is the Daniel's nonsuit of his entire

 7   case against Andy Weiner.      And I have this Ccurt's order

 8   granting his nonsuit and dismissal.       His nonsuit was

 9   March lOth; the dismissal was March 16th; anc the

10   counter and cross-petition was March 24th.

11                  MS. PACHECO:     My only request, Your Honor,

12   is if it is three distinct documents,      if we can enter

13   those as three distinct exhibits because I'm quite

14   confident where Ms. Cantrell would go next ar.d that

15   would be the appellate record.      I always fine it's

16   easier to refer to each document separately in the

17   record if that's okay.

18                  MS. CANTRELL:     Okay.   That's fine.

19                  We'll mark those Exhibit 1 for the notice

20   of nonsuit.   Exhibit 2 for the dismissal.      Ar.d Exhibit 3

21   for the counter and cross-petition.

22                  THE COURT:     Exhibit 1 which is

23   Petitioner's Notice of Nonsuit Against Andy Weiner is

24   admitted as Exhibit 1, as Plaintiff's Exhibit 1.         And

25   the Order Granting Petitioner's Nonsuit and Dismissal,


         HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
                                                                        6


 1   that is admitted as Plaintiff's Exhibit 2.        Jnd Andy

 2   Weiner's Counter and Cross-Petition is admitted as

 3   Plaintiff's Exhibit 3.

 4                   MS. CANTRELL:     I would also   li~e   to admit

 5   Exhibit 4 which is Andy Weiner's Second Amenced

 6   Cross-Claims.   And one of the footnotes in tte response

 7   that,   I guess, Ms. Beduze or Ms. Pacheco filed last

 8   night about 5:00, said that it was administrative error

 9   that this cross-claim got left off of the liEt of

10   documents that were transferred to Daniel's case.           And

11   so, I would like to admit Exhibit 4 as the Second

12   Amended Cross-Claims to show, number one,        that it was in

13   David's case only.

14                   MS. PACHECO:     I have no objection.

15                   MS. CANTRELL:     Okay.

16                   THE COURT:     Okay.   Andy Weiner's Second

17   Amended Cross-Claims Against Katherine Warren Formerly

18   Known As Katherine Weiner is admitted as Plaintiff's

19   Exhibit 4.

20                   MS. CANTRELL:     And because I think there

21   might be a dispute over whether that -- those

22   counter-claims or those cross-claims apply in Daniel's

23   case,   I would like to also admit Exhibit 5 which is this

24   Court's order and the list of documents that were moved

25   over in the motion to sever in the agreed order -- or


         HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
                                                                      7


 1   not the agreed, but the amended order to sever - that

 2   being dated November 17th of 2014,      showing clearly that

 3   those cross-claims were not moved.

 4                  MS. PACHECO:     No objection.

 5                  THE COURT:     Okay.   The Amended Order On

 6   The Motion To Sever is admitted as Plaintiff's Exhibit

 7   5.

 8                  MS. CANTRELL:     And the only otter one that

 9   I would like to admit at this time is Exhibit 6 which is

10   the email chain that led up to that motion      OI   that order

11   to sever in that itemized list of documents tecause it

12   took us 10 days of negotiations to get that list pulled

13   together.   It started with a draft of a, of a list that

14   Ms. Beduze put together, and it's in substantial

15   identical form as the one that was actually      ~igned.       And

16   we went back and forth with certain changes to the

17   language on it - who was going to pay for the cost and

18   so forth; but essentially, it was negotiated.         It was

19   in the email - this is from Judge Comstock tc me and

20   Kathleen Beduze - she said,     "Are there any acditional

21   items that you would like to include in the crder to

22   protect the order?"

23                  So we all,   I believe, had ample

24   opportunity to add to, subtract, and it didn't make it.

25   Just to clear the record that that is not pait of


          HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
                                                                    8


 1   Daniel's case - the cross-claims aren't.

 2                   MS. PACHECO:     I'm going to object to a

 3   series of emails between Counsel and your court staff

 4   that are basically going back and forth and aren't

 5   complete.     It's hearsay, it's inappropriate, and this

 6   doesn't constitute anything but the efforts of lawyers

 7   trying to do the right thing.      The document speaks for

 8   itself.

 9                   MS. CANTRELL:     I would agree to leave it

10   out if there's no objection that the cross-claims are

11   not in Daniel's case.

12                    MS. PACHECO:    We've already placed in the

13   record what we placed in the record, Your Honor.       The

14   record speaks for itself.

15                    MS. CANTRELL:    The record is conflicting,

16   then, because the response says that they are before

17   this court, and I believe that the record shows that

18   they're not.

19                    MS. PACHECO:    The Court's order speaks for

20   itself.     And the Court's order specifically says that

21   you are moving over, let me find the exact wcrding ...

22                    "All prior motions, discovery crders,

23   responses and answers."     And then there is a laundry

24   list of specific pleadings.       So, the order Sfeaks for

25   itself.     I don't think conversations between Counsel and


         HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
                                                                         9


 1   court staff who are trying to be helpful but certainly

 2   weren't shepherding responsible a ruling on these

 3   matters is any way relevant to the appellate record in

 4   this case.

 5                   MS. CANTRELL:     Then I would point out that

 6   prior discovery, orders, motions, responses and answers

 7   do not include pleadings.       And that cross-claim would be

 8   a pleading.    So,   I mean, if we're in agreemer.t that the

 9   cross-claim does not apply to this case, ther.,          I'm okay

10   not admitting the emails.

11                   MS. PACHECO:     I've said my objection, Your

12   Honor, at this point.      I believe I don't think I have

13   anything else to add, and I'm just wasting ycur time

14   reiterating the same thing.       It's for the   Co~rt   to rule.

15   I believe the record speaks for itself, and it's for the

16   appellate court to determine where somebody is going to

17   go.

18                   THE COURT:     Okay.   I'm not going to be

19   able to admit Exhibit 6.

20                   MS. CANTRELL:     Okay.   That's fine.

21                   THE COURT:     Okay.   So, let's ccntinue.

22                   MS. CANTRELL:     In a case like Laniel's

23   where there is a nonsuit and there are no outstanding

24   claims,   it's clear there was no cross-claim against

25   Katherine and the counter and cross-petition was filed


           HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND R,PORTER
                                                                          10


1    well after the dismissal.     That is on all 4', - the

2    supreme court case of Greenberg versus Brookshire.                 And

 3   that case has been followed over a hundred times in all

4    kinds of cases.   Greenberg versus Brookshire was a

 5   divorce case, but it's been followed by Texas Supreme

 6   Court cases, it's been followed by appeal court cases,

 7   Fifth Circuit Court of Appeals,     the federal courts.

 8   It's the law of the land.     It's a landmark case.            It was

 9   a case exactly like this where there was a suit and a

10   nonsuit and a counter-claim following the nonsuit.                 And

11   the supreme court mandamused the judge - it was a

12   district court judge in Jefferson County - and said,

13   "Halt.   The case is over."

14                  And I submit that our case is Greenberg

15   versus Brookshire on all 4's.

16                  MS. PACHECO:     May I proceed, Your Honor?

17                  THE COURT:     Certainly.

18            DANIEL WARREN'S PLEA TO THE JURISDICTION

19                     ARGUMENT BY MS. PACHECO:          I




20                  MS. PACHECO:     I think the fundabental

21   difference is the way we view what this case is.               I

22   admit,   I'll be the first person to admit,      this case is

23   probably the most convoluted procedural case            ~'ve   ever

24   seen.    Petitioners have become Respondents;      t~ey've
25   released each other; they've sat in        depositio~s
                                                             I


         HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER     I
                                                                       11


 1   representing the other.     It is a bizarre easel.       I don't
                                                      !




 2   understand what they're doing, but frankly,     t~ey,         as Ms.

     Cantrell told me when I called her the day I got her
                                                      !


 3
                                                      !




                                                      !




 4   nonsuit,   she doesn't have to tell; and she's right.            But

 5   what she misses is when she chooses to nonsui t      1   my

 6   client who'd been a defendant for a year and a half, had

 7   substantial money invested in the education of this

 8   Court and rulings obtained by this Court, had the

 9   absolute right to, himself, institute a lawsuit and

10   proceed on that lawsuit to resolve the very issues they

11   have raised and vilified him for.     And that's exactly

12   what -- you don't have to worry about the nonsuit.

13                   I'll take the simple answer first.

14                   When we filed days after she filed her

15   nonsuit, we filed a cross and counter-petition.           We

16   affirmatively stated in there, and it's her exhibit,

17   that because of the convoluted procedural nature of this

18   case, we drafted it just like an original petition.              And

19   in fact,   it shows Paragraph 1 as discovery letter level

20   just like an original petition.     And Footnote, 2 says,

21   "Due to the confusing nature of this case's Jrocedural

22   background, Mr. Weiner requests that service lbe affected
                                                      I




23   on Daniel through his attorney of record as ~ell as
                                                      I




24   through private process."

25                   We treated this suit to be careful as a


         HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
                                                               12


 1   newly-instituted lawsuit which that jurisdiction

 2   reattaches to this court on the moment the pleading is

 3   filed.   And that is confirmed.   In fact,   when I was

 4   looking at this issue, and it is an odd issue - because

 5   what Ms. Cantrell focuses on her nonsuit.      If she filed

 6   a nonsuit and then when we came down and got

 7   affirmative relief against Daniel, which is what

 8   happened in Greenberg,   I would be saying she's

 9   absolutely right.   We can't do that.   All we did was

10   reinstitute a lawsuit in the same cause number which

11   Local Rule 2.2 tells us this is where this lawsuit goes.

12   Once you choose the number, it goes back to that

13   original number.

14                  We instituted a new lawsuit and

15   immediately attempted to effectuate service.

16                  When they evaded it nine times, this Court

17   entered a substituted service order.    This Court had

18   absolutely every right to do that because every court

19   has jurisdiction to enter a substituted order when a

20   party is evading service.    And that's what's happened in

21   this case.   That's all that's happened.

22                  In Greenberg, after the party dismissed,

23   the Court entered rulings.    Well they can't enter

24   rulings because I would agree in that case the parties

25   aren't before this Court.    The only thing that's


         HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
                                                                     13


 1   happened in this case since the readmission of this

 2   pleading is the attempt to join her clients, and we have

 3   now done that through substituted service.       We haven't

 4   gotten to any affirmative rulings.      They will be a

 5   party.

 6                 Greenberg is completely irrelevant to this

 7   case 'cause your court has entered no rulings.       You've

 8   done nothing other than approved substituted service

 9   since we filed this pleading.      Now once the service date

10   has passed, whatever she's going to do - she can argue

11   then whether we should have the ruling or not, but

12   they're before this Court; they've been joined.

13                 The supreme court in Zachary versus Lane

14   in 2001 looked at the issue of who is a party.       Do you

15   have to be served to be a party or are you a party the

16   second the pleading is filed?      The supreme court looked

17   at the case and said,    "No.   You are a party the second

18   the case is filed."     They were rejoined as a party

19   'cause we re-served her which I agree - if they claim

20   they want a party - so be it.       But we didn't skip the

21   step of personal service.       We did that; albeit, by

22   substituted because they evaded.

23                 But in that case, the supreme court said

24   they are party the second the pleading is filed.          Now

25   you can't render judgment against that person unless we


         HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
                                                               14


 1   go and proceed and join, but the definition of "party"

 2   is not when they have just been joined; in fact, what

 3   they said:

 4                   "The supreme court does not hold that a

 5   named defendant is not a party until that person is

 6   served except to waive service."

 7                   Well it's true the party may be served

 8   except to waive service otherwise a PR in order for a

 9   judgment to be rendered against them; nevertheless, it

10   doesn't make them not a party in the lawsuit in which

11   they have been specifically named.

12                   Another case out of Corpus Christi,

13   Christus Health versus Ragsdale, also a 2001 case,

14   looked at the issue of can you then add a party to a

15   suit later and it relates back to the original filing?

16   And they say,   "Yes,•• even if that party tried to run off

17   to another court and file a lawsuit.    And that's Corpus

18   Christi -- Christus Health versus Ragsdale.

19                   So, my point is we're sort of avoiding the

20   real issue here.

21                   She does not like that when she was

22   playing her procedural games, we got a sense that this

23   wasn't going away and reinstituted the very same

24   affirmative claims in this suit that they have been

25   bringing this whole time,   construction of the trust.


         HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
                                                                  15


 1                   So,   I just disagree wholly that her cases

 2   apply.    I disagree wholly this Court doesn't have

 3   jurisdiction.     It's a statute of probate court.    As you

 4   know very well,    it's concurrent jurisdiction in all

 5   trust cases.    This is a trust case that had been pending

 6   here.

 7                   And on March 24th, before she went to the

 8   district court, we initiated, at a minimum, what would

 9   be deemed a new lawsuit.

10                   I have a few exhibits to put in the

11   record.    They are mainly attached to my pleading so I

12   didn't make extra copies for Counsel, but I do feel like

13   I want to go the extra step and have them in the record.

14                   I'm offering as Exhibit A, and I

15   apologize,   I'm just trying to use the same exhibit

16   numbers I did to my response.      The Original Petition For

17   Termination of Trust originally filed by Katherine

18   Warren as Co-Trustee of Daniel's trust on October 2nd,

19   2013 as Respondent's for Mr. Weiner's Exhibit A.       And

20   I'll represent to Counsel these are duplicates of the

21   exhibits attached.

22                   MS. CANTRELL:    That's fine.

23                   THE COURT:    The Original Petition For

24   Termination of Trust is -- well do you have an

25   objection?


         HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
                                                                       16


 1                    MS. CANTRELL:     No objection.

 2                    THE COURT:     Is admitted as Respondent's

 3   Exhibit A.

 4                    MS. PACHECO:     Thank you, Your Honor.     We

 5   offer as Exhibit B, the First Amended Original Petition

 6   For Modification of Trust and Response To Plea and

 7   Abatement and Plea To The Jurisdiction filed by

 8   Katherine Warren as next friend of Daniel Weiner on

 9   November 4th of 2013, Your Honor.

10                    MS. CANTRELL:     My only objection,    I guess,

11   other than those two, would be that those are -- are

12   those in Cause 425.576?

13                    THE COURT:     Yes.

14                    MS. CANTRELL:     Which is a case that's been

15   dismissed now.     So, that's -- it was dismissed back in

16   November of 2013.     They're somewhat irrelevant, but I

17   presume it's harmless to admit them at this point.

18                    MS. PACHECO:     I just want to show the

19   procedural and history of this particular Mr. Weiner's

20   claims, Daniel Weiner's claims as it relates to this

21   Court, Your Honor.

22                    THE COURT:     The first amended -- so are

23   you --

24                    MS. CANTRELL:     I'm okay with that.

25                    THE COURT:        withdrawing your objection?


         HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
                                                                    17


 1                 MS. CANTRELL:       No,   I have no objection.

 2                 THE COURT:       Okay.    The First Amended

 3   Original Petition for Modification of Trust and Response

 4   To Plea and Abatement and Plea To The Jurisdiction is

 5   admitted as Respondent's Exhbit B.

 6                 MS. PACHECO:       Thank you, Your Honor.

 7                 And I offer as Exhibit C,        the Original

 8   Petition In Intervention filed by Daniel Steven Weiner

 9   on April 22nd of 2014 in Cause Number 425.577.

10                 MS. CANTRELL:       No objection.

11                 THE COURT:       The Original Petition In

12   Intervention is admitted as Respondent's Exhibit C.

13                 MS. PACHECO:       Thank you, Your Honor.

14                 I offer as Andy Weiner's Cross-Claims

15   Against Katherine Warren Formerly Known As Katherine

16   Weiner filed on July 2nd,      2014, Your Honor.

17                 MS. CANTRELL:       No objection.

18                 THE COURT:       The Andy Weiner's Cross-Claims

19   Against Katherine Warren,      F/K/A Katherine Weiner is

20   admitted as Respondent's Exhibit D.

21                 MS.   PACHECO:     Your Honor,   I offer into

22   first supplement -- First Supplement To Original Answer

23   filed by Mr. Weiner on July 8, 2014.

24                 MS. CANTRELL:       No objection.

25                 THE COURT:       The First Supplement To


         HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
                                                                           18


 1   Original Answer is admitted as Respondent's Exhibit E.

 2                       MS. PACHECO:     Thank you, Your Honor.

 3                       I offer as our Exhibit G, the Rules of The

 4   Probate Courts of Harris County, Texas approved by the

 5   supreme court and entered as an order of this court on

 6   March    8    of, 2007.

 7                       MS. CANTRELL:     May I see those?        Which

 8   rules are those?

 9                       MS. PACHECO:     Yes.

10                       MS. CANTRELL:     Oh, the probate courts.

11   Good.        Thank you.

12                       THE COURT:     The Rules of The Probate

13   Courts of Harris County, Texas, are entered as

14   Respondent's Exhibit G.

15                       MS. PACHECO:     Thank you.    And I was going

16   to offer so I affirm the offering of Andy Weiner's

17   Counter-Claim and Cross-Petition which I believe is

18   already Plaintiff's Exhibit 3.              I believe that's already

19   admitted into evidence; is that right, Your Honor?

20                       THE COURT:     It is.

21                       MS. PACHECO:     Thank you.

22                       And finally as Exhibit H,       I offer

23   Plaintiff's Original Petition of David W. Warren, Daniel

24   W. Warren and Katherine Warren as next friend of MHW, a

25   minor.        That was filed in the district courts of Harris


         HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
                                                                    19


 1   County and assigned to District Court Number 133 on

 2   April the 2nd of 2015.

 3                  MS. CANTRELL:       No objection.

 4                   THE COURT:      Okay.   Plaintiff's Original

 5   Petition is admitted as Respondent's Exhbit H.

 6                  MS.   PACHECO:     And what those documents

 7   establish is the procedural history in this court

 8   including the severance because of Mr. Daniel Weiner's

 9   now-Daniel-Warren's intervention; but more specifically,

10   that Mr. Weiner's counter and cross-petition which fell

11   to constitute the original pleading that was promptly

12   served was filed before any attempt to initiate any

13   jurisdiction, any other court which the supreme court

14   has also said the first filing applies.           And that would

15   reinstitute this Court's jurisdiction.

16                   Even if you believe that we couldn't

17   rejoin her,   even if you believed that there was no valid

18   existing lawsuit as it relates to Daniel,          it's

19   irrelevant because we reinstituted a lawsuit on March

20   24th; we promptly served; service has been obtained.

21                  And finally we ask the Court to take

22   judicial notice of your order of substituted service.

23                   THE COURT:      It is so noted.

24                  MS.   PACHECO:     Thank you,   Your Honor.

25


         HIPOLITA G. LOPEZ,    CERTIFIED SHORTHAND REPORTER
                                                                   20


 1              REBUTTAL ARGUMENT BY MS. CANTRELL:

 2                  MS. CANTRELL:    May I?   I have a couple of

 3   comments in rebuttal.

 4                  THE COURT:   Sure.

 5                  MS. CANTRELL:    The facts of this case are

 6   what happened in Greenberg versus Brookshire

 7   identically.   There was a counter-claim, a brand new

 8   pleading into the case after the nonsuit, and that's in

 9   the Court's -- the supreme court said that that -- the

10   nonsuit ended the case.     It was over at that point.

11   There should be no more claims - whether they're

12   hearings or not - there's no more orders.       The case is

13   over.

14                  And so I also wanted to point out that in

15   their responsive -- the response to our motion -- our

16   plea to the jurisdiction which I'm not sure that you-all

17   have because it was filed about 5:00 last night.       Did

18   you-all get that?

19                  THE COURT:    The response --

20                  MS. CANTRELL:    Their response to our plea.

21                  THE COURT:    Yes,   I got it right here.

22   They gave me this notebook which is their courtesy copy.

23                  MS. CANTRELL:    Okay.    Could you please

24   look for me on -- at Paragraph 33 and 36 of their

25   response because I would like to correct the record on a


         HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
                                                                  21


1    couple of misstatements in there about timing and dates

 2   which I think the records -- the documents we have

 3   admitted will speak for themselves.

 4                   Paragraph 33 says that "Further in his

 5   counter and cross-petition filed prior to the Court

 6   signing Daniel's request for dismissal" - that is not

 7   correct.    The counter and cross-petition was filed after

 8   the Court signing Daniel's request for dismissal - the

 9   dates being March 24th for the counter and

10   cross-petition and March 16 on signing the dismissal.

11   And that error is repeated in Paragraph 36 where it

12   says,   "In subsequent to Daniel's nonsuit but prior to

13   the entry of dismissal, Mr. Weiner's cross and

14   counter-petition was filed."       That's the same error.       It

15   is incorrect on the dates.      Daniel's nonsuit predated,

16   and his dismissal predated, the cross or the counter and

17   the cross-petition.    so·,   I would -- I'd 1 ike to correct

18   the record on those two things.

19                   THE COURT:    Okay.   Just quite simply:    We

20   view the pleading filed on March 24th by Andy Weiner

21   whose counter and cross-petition, we view that as an

22   original petition.    I mean,    I know it's titled,   "Counter

23   and Cross-Petition" but we view it as an original

24   petition.    And so

25                   MS. CANTRELL:     Your Honor,   could we look


         HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
                                                                 22


 1   at the local rules, then, on the numbering,      the case

 2   numbering, on original petitions that are in evidence?

 3                   THE COURT:   Okay.

 4                   MS. CANTRELL:   It says,   "All matters

 5   relating to or appertaining to an estate or

 6   guardianship -- "

 7                   THE COURT:   Where are you reading from?

 8                   MS. CANTRELL:   The Rule 2.2, the one they

 9   cited in their response.

10                   THE COURT:   Okay.

11                   MS. CANTRELL:    "All matters relating or

12   appertaining to an estate or guardianship," which this

13   does not,   "that has not been closed as provided in the

14   Probate Court Code including proceedings upon trust

15   created by decedent's will," which this is not -this is

16   an inter vivos trust,     "shall remain in such court

17   subject to an order of transfer as with any case and

18   shall retain the original docket number with an

19   appropriate sub file."

20                   So,   if it's an original petition, it

21   should have its own separate case number according to

22   the way I read these rules.

23                    "Each subsequent matter filed involving

24   the same decedent or Proposed Ward," which this does not

25   involve,    "shall be filed in the original file under the


         HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
                                                                      23


 1   same docket number and in the same court as the original

 2   filing."

 3                  So,   I do not see under these rules how

 4   they can file a brand new petition into a case that has

 5   been nonsuited.      I don't dispute that they could file a

 6   brand new lawsuit and they're welcome to.          They will --

 7   they've already raised the construction issues in the

 8   district court case; so those are already before the

 9   district court case.     So,   it would be duplication if it

10   reads the same way as their counter and cross-petition.

11                  MS. PACHECO:      Actually,   they're part of an

12   affirmative answer, and there is a plea to abate in the

13   district court case saying this court has jurisdiction.

14                  MS. CANTRELL:      I have a copy of that

15   pleading.   Well you've got it in evidence.

16                  THE COURT:      Okay.   So,   if we view this as

17   an original petition, does it need to go back to

18   should it have gone through the process of being

19   assigned to another probate court?

20                  MS. PACHECO:      I don't know the answer to

21   that.   That's never been my experience.         My experience

22   with the Clerk's Office in 20-plus years,         if it relates

23   to the exact same cause number or style of the

24   original - it always goes back to that case.          They get

25   very upset when you start picking new courts which is


         HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
                                                                     24


 1   part of the reason you have assigned it back to the same

 2   court which is clearly intention of the local rules.

 3                  MS. CANTRELL:     And, Your Honor,   I have the

 4   Government Code Section 25.1034 which this Rule 2.2

 5   refers to,   and it does talk about the random

 6   assignments.   And it says,     "The county clerks will keep

 7   a separate docket for each court.      The County Clerk

 8   shall assign and docket as random matters and

 9   proceedings filed in the statutory probate courts

10   according to the following percentages:

11                   "Probate Court Number 1 - 30 percent;

12   Probate Court 2 - 30 percent; Probate Court 3 - 20

13   percent; Probate Court 4 - 20 percent."

14                   So, this is the random assignments.       You

15   may be familiar with this.

16                   MS. PACHECO:    That's a Clerk's Office

17   function.    If the Court wants to tell them to reassign

18   it a new cause number,   it doesn't change the filing it

19   attaches to the courts - it's just a matter who hears

20   it.   But I've never seen a case where the case was

21   already before a court that even if it was assigned to

22   another court, it wasn't immediately transferred back

23   under administrative transfer powers.

24                   MS. CANTRELL:     I have no problem --

25                   THE COURT:     We can go through that -- we


           HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
                                                                      25


 1   can go through the motions of -- I can send the file

 2   back to the Clerk's Office for random assignment.          But

 3   then whatever judge in Harris County gets it is going to

 4   see that we've got two other related cases, and they're

 5   going to send it back.

 6                   MS. CANTRELL:     Your Honor,   I would submit

 7   that they need to file a brand new lawsuit in starting

 8   all over.

 9                   MS. PACHECO:     Of course,   she does because

10   she wants to try and get to her district court.          This is

11   a game.     It is a vile game that has been played for a

12   year and a half.     It is offensive.

13                   MS. CANTRELL:     It is not a game; it is

14   called following the rules.

15                   MS. PACHECO:     No,   this isn't following the

16   rules.    This isn't the spirit of the Code of

17   Professional Conduct.     This isn't the spirit of the

18   Rules of Professional Procedure.        There is nothing

19   appropriate about the actions that have been taken in

20   this case.

21                   MS. CANTRELL:     There is

22                   MS. PACHECO:     I'm going to be quiet

23   because I'm about to be unprofessional myself.

24                   THE COURT:     You know,   I'm just not going

25   to do anything about -- I view this as an original


         HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
                                                                     26


 1   petition.   I don't care what it's called.        And I'm not

 2   going to do anything about the sending it to the Clerk

 3   for random reassignment.       I really don't -- I've never

 4   had this issue come up, and I'm just not going to do

 5   anything about it.    And,   I mean, and you can, you can

 6   appeal these decisions, of course.      And so,    I mean,

 7   that's what I suggest you do.      But I view this as an

 8   original petition and that's just, that's just how I

 9   reasonably view it.    And so I could be wrong about that

10   but --

11                   MS. CANTRELL:    Your Honor,   there is a case

12   by Justice Bland who is the same one that wrote the

13   opinion in Michael's case --

14                   MS. PACHECO:    Your Honor,    I have a

15   proposed order on the dismissal of the plea and the

16   jurisdiction.    I would ask that the Court enter it.

17                   THE COURT:     Well what were you saying?

18                   MS. CANTRELL:     The Court says this:

19                   "After the trial Court lost plenary

20   power," this involved a nonsuit, and your plenary power

21   expired 30 days after the March 16th dismissal under

22   Section 329(b) of the Rules of Civil Procedure,           "after

23   the Court, trial Court,      lost plenary power it granted a

24   plea to the jurisdiction.       Because the trial Court had

25   lost its plenary power,      the Trial Court's order granting


         HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
                                                                   27


 1   the plea is void.       An appellate Court should declare

 2   post-plenary power orders void."

 3                    And that is my position that any order in

 4   this case past April 16th, according to every case I

 5   have read,   is void.

 6                    In this case, now they can file a brand

 7   new lawsuit, but the jurisdiction in this case is over

 8   starting with the nonsuit and 30 days thereafter when

 9   the plenary power expires.       That is just according to

10   the rules.

11                    You can call it gamesmanship as Ms.

12   Pacheco likes to do frequently,         but it's playing by the

13   rules.   It is to prevent this exact same thing

14   happening; otherwise, the right to nonsuit would be

15   illusory.    You could never nonsuit because someone could

16   simply counter-claim you right back in which is exactly

17   what happened.     And this case is -- this would be not

18   only void but it would be an interlocutory order and

19   that does not qualify for permissive appeal because it's

20   not a situation where there's substantial ground for

21   disagreement.

22                REBUTTAL ARGUMENT BY MS.       PACHECO:

23                    MS. PACHECO:    One,    that case doesn't apply

24   under this circumstance; and two,         again Counsel

25   completely ignores how the law does not approve of forum


         HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
                                                                     28


1    shopping which is exactly what's happened in this case.

 2   We obtained rulings on summary judgments.        We did all

3    that.   She, again,    incurred thousands and thousands of

 4   dollars of legal fees.      And then she tried to get out of

 5   this court 'cause she didn't like where it was going and

 6   go find a different shore.       That is flat-out forum

 7   shopping.     This isn't even a different county - it's a

 8   different court; different floor; different court; same

 9   courthouse.

10                    So,   I don't see how any of that is

11   appropriate or relevant to the issues in this case.

12                    MS. CANTRELL:    The plaintiff has a perfect

13   right to choose his forum that's why Wyatt versus Shaw

14   Plumbing is the case that Michael's case went up on

15   appeal over.

16                    MS. PACHECO:    And Mr. Weiner has done that

17   when they chose to take their ball and try and get

18   different rulings at a different court.         And now he is

19   the Plaintiff, and he has chosen the Harris County

20   Probate Courts, wherever he be assigned,        including the

21   judge who is very educated on this process.

22                    MS. CANTRELL:    Your Honor,   I have an order

23   dismissing Andy Weiner's counter and cross-claim and

24   dismissing this entire case.

25


         HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
                                                                            29


 1                            COURT'S RULING

 2                     THE COURT:   Okay.     I'm not going to

 3   dismiss it.      And I could be wrong on when I sign this

 4   order on the plea to the jurisdiction.          I guess,       I'm

 5   just -- I'm frustrated because at the beginning of this

 6   case then Andy Weiner wanted it moved over to the family

 7   court.     And so we -- when I looked at the case,         I

 8   thought, you know, clearly this is within the language

 9   of the divorce decree, right?          The divorce decree.           And

10   I know I'm going back years, but the divorce decree,                  if

11   I remember right, said that they were to be trustees and

12   that they weren't supposed to seek the removal of either

13   of them.       I don't remember exactly what the language

14   was.     So,   I thought, well, you know, a judge over there

15   is one who signed that order or that decree, and they

16   need to go back and determine if this is,         in fact,       a

17   violation of that decree.       I was wrong about that.              So,

18   that came back to us.

19                     And now the Warren children are wanting to

20   move their cases to district court.          And it's, in my

21   view,    it doesn't serve the interest of either party or

22   either -- or any of the parties to be jumping around

23   courts especially you guys have both invested a lot of

24   time, energy, and money in this court.          And it feels

25   like forum shopping to me.       And they've invested a lot


            HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
                                                                       30


 1   of effort and money and time when they,         over the course

 2   of this case,      and I can't just dismiss it.     And I could

 3   be wrong.     I mean,    I could be wrong that my plenary

 4   powers expire 30 days after I sign the order dismissing

 5   the case.     But that's not the way I view it.         I view

 6   this as,    in essence, an original petition being filed.

 7   And maybe it should have been funneled through the

 8   Clerk's Office and assigned to a different court.             I

 9   don't know.        But I'm not going to dismiss it over

10   something procedural like that.

11                       So, you know,   I'm going to have to just do

12   what I think is right and let the appeals court deal

13   with it.     So,    that's all I know how to do.

14                       MS. CANTRELL:    Yes, Your Honor.

15                       MS. PACHECO:    Your Honor, while we're

16   here, may I make one last request that has nothing to do

17   with this motion.        And you raised this at the last

18   hearing.

19                       Ms. Cantrell has the propensity to contact

20   your staff and email them and elicit comments and then

21   quote them, now in mandamuses and other proceedings.              I

22   recognize it's your prerogative to allow us to do that,

23   and you've been very accommodating to move things along.

24   Given what she has contorted some of those statements to

25   be,   I would request that if any requests should be made,


           HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
                                                                    31


 1   they should be made in open hearings with a record so

 2   it's not this back and forth convoluted process and then

 3   attempt to put an email in the record.

 4                   I recognize -- I'm a believer in

 5   cooperative courts, and y'all have always been

 6   cooperative, but I feel that now she tries to get

 7   answers and then use those in future proceedings and

 8   it's just improper.

 9                   She has suggested court staff has given

10   her legal advice which hasn't -- I'm not staying it

11   happened,   but I just think it needs to stop.       I mean,    to

12   the extent we request a hearing,     the request should be I

13   want to set a hearing on ''X" date - not the going back

14   and forth because I feel like we have crossed the line,

15   or perhaps all sides,    in this case.    And because of the

16   nature of this case,    I would ask that you direct all

17   parties to stop emailing anything substantive to the

18   Court and put in a pleading.

19                   THE COURT:   Okay.

20                   MS. CANTRELL:   I thought you did that

21   already, Your Honor, at the last hearing.         You did ask

22   us -- well,   to put everything in emails so now the

23   request I'm hearing is not to even email?

24                   THE COURT:   Well,   I mean,   the thing is,

25   this is the limits -- I mean, we're bound by judicial


         HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
                                                                      32

 1   ethics, and I'll say this.      What I said before is we've

 2   kind of been -- we've done our best to abide by those

 3   ethical requirements, but I will say that in estate and

 4   guardianship matters where we're dealing with a lot of

 5   pro se litigants then quite often we will give advice

 6   that borders on, you know,      it may go beyond just

 7   procedural, and it may be even bordering on legal

 8   advice.   And we do that because we view that sometimes

 9   it's just,   it's expeditious for the protection of a Ward

10   especially, okay.    We don't want anything bad to happen

11   to our Wards, and we view that as our highest priority.

12                  This case is totally different, okay.        And

13   the only thing that you guys, as you know, are permitted

14   to visit with our staff about is procedural issues.             And

15   so beyond that, we shouldn't receive any communication

16   if it has nothing      if it goes beyond procedural, we

17   are not permitted to receive it.

18                   MS. CANTRELL:     Your Honor,    I understand

19   that, and I think that was clear at the last hearing.

20   I'm not sure why it's coming up again.

21                   MS. PACHECO:     It's coming up because now

22   she's quoting emails in mandamuses.       And what I've come

23   to realize is you call it procedural issues, but

24   technically, what she should be communicating with the

25   Court about is setting hearings.       I mean,    she can't get


         HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
                                                                    33


 1   her procedural questions answered by this Court either.

 2   If she wants to know what the Court wants to do on a

 3   particular issue,   I'm always happy to come down here and

 4   have a status conference with a record,   and we can deal

 5   with it in the proper way.

 6                  166(g), under the Rules of Procedure,      is

 7   intended to address procedural issues on notice and

 8   pleading.   But what has happened in this case is she's

 9   sort of contorting those communications into other

10   things; and frankly,   I don't like having arguments with

11   Counsel where, you know,   colleagues or anybody

12   associated with the Court are copied on those.      It just,

13   you know -- and there's embedded comments in there.

14                  I understand -- I'm not saying it should

15   be in every case, and I certainly,   I said this last time

16   and I'm going to say it on the record - I am not

17   implying this Court has done anything other than be

18   excessively cooperative to both sides.    But Ms. Cantrell

19   then contorts those into advice; and, you know,      it's not

20   even with you, but your staff is an arm of you and it

21   can be deemed as ex parte communication or she's trying

22   to argue the Court told her to do something.       It's

23   improper.   And she's not seeing the limits of those,       and

24   yet again, when we're setting things,    there's a lot of

25   back and forth that included Judge Comstock.       I just


         HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
                                                                    34


 1   think this needs to stop because it's an unusual case

 2   with unusual parties and unusual counsel and perhaps

 3   this is one where other than asking for setting a

 4   hearing, everything else needs to be on the record to

 5   avoid this happening again.

 6                   THE COURT:   Okay.

 7                   MS. CANTRELL:   These emails with the order

 8   on the severance,   I'm not sure who initiated those but

 9   it certainly wasn't me.      I mean, but we have discussed

10   this over and over at the last hearing.

11                   THE COURT:   Well no, no because the Court

12   can discuss procedural issues with lawyers, but when

13   but that is such a -- you know, when you talk about

14   procedure versus giving legal advice,     I think there is a

15   lot of overlap there.     And here, you know, you guys are

16   seasoned lawyers.    You guys know the procedures.

17   There's no reason why you need to be visiting with us

18   over -- about anything other than scheduling hearings.

19   So,   I think it's very fair that Ms. Pacheco request that

20   we limit our all-communication.

21                   MS. CANTRELL:    Yes, Your Honor,   I agree.

22   We did that already.     I'm not sure what it is that made

23   her bring it up again.

24                   THE COURT:    I don't even see these emails.

25   I don't know.    But if there is something that goes


           HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
                                                                    35


 1   beyond the bounds of simply setting hearings then --

 2                 MS. PACHECO:      There's a discussion of

 3   pulling down certain hearings, we're going to go in a

 4   different direction.     All of that is beyond what should

 5   be communicated in emails.      They're not part of the

 6   Court's record and yet she tries to admit them.

 7                 Again,   I've never made this request, but

 8   I've never had a case quite like this.        And I'm very

 9   appreciative that we can approach you on any normal case

10   and ask reasonable questions with Counsel copied.         This

11   is just not that case.

12                 MS. CANTRELL:        But Counsel was copied on

13   those emails and it was initiated --

14                 MS. PACHECO:      But it's a rally back and

15   forth.   It's an ex parte communication and then Counsel

16   is forced to respond and your staff is then watching

17   this volley back and what do you do with that thing?           Do

18   you show it to you?    Does it go in the Court's file?

19                  THE COURT:    It doesn't get to me, but it

20   does in a sense because if it gets to anyone of our

21   staff it gets to me.     I mean,    it's deemed that I have

22   viewed it, okay.   And so because they are an extension.

23   The staff is, of course, an extension of me.

24                  And, you know,      the truth is,   I view those

25   emails as ex parte even though it copies Counsel.          It's


         HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
                                                                      36


 1   still an ex parte communication, and this is why:

 2   Because it does force the other side to have to respond.

 3   It does bring the other side into like almost a secret

 4   hearing in a way.      I mean, you're putting information

 5   out there or questions out there and forcing the other

 6   party in to respond.       I don't know what else to say

 7   except that if someone makes a request that we limit

 8   receipts of emails and communication by email and phone

 9   to scheduling hearings.       I think that's a reasonable

10   request and especially because you guys can call up any

11   time and set a hearing, and you'll have it, you know.             I

12   mean,   it's not like I'm not here, you know.

13                    MS. CANTRELL:       I'm just confused about

14   what it is Ms. Pacheco is concerned about if it was

15                    MS.   PACHECO:   I don't want to have a

16   discussion of the substance of all emails.            I think

17   everybody's aware, probably not you because you haven't

18   seen them, of what's been going on.          I   just think it

19   needs to stop.

20                    And again,   she,    just like the offering of

21   this email today,      some emails that are going to happen

22   to show up in the mandamus - it doesn't matter the

23   substance.    I'm not complaining anything's improper at

24   this point - I just think in the future on an on-going

25   basis, to avoid future issues, that I would ask the


         HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
                                                                    37


 1   Court to direct all counsel, us included, to limit our

 2   contacts with this Court to requesting hearings which I

 3   think is the conservative and appropriate means to

 4   communicate with the Court because I do want a record

 5   any time Ms. Cantrell communicates with this Court.

 6                   THE COURT:     Okay.   So,   just I guess going

 7   forward,   all communication needs to be with setting

 8   hearings only and

 9                   MS. CANTRELL:     I agree, Your Honor.     I

10   think you made that clear to us last time.

11                   THE COURT:     Okay.   Ms.   Pacheco, do you

12   want to sign this?

13                   MS. PACHECO:     I apologize.     Thank you.

14                   THE COURT:     Thank you.

15                   MS. PACHECO:     May I be dismissed?

16                   THE COURT:     Yes.

17                   MS. PACHECO:     Thank you.

18

19

20                            * * * * *
21

22

23

24

25



         HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
                                                                  38


 1   The State of Texas

 2   County    of    Harris

 3

 4            I, Hipolita Lopez, Official Court Reporter in and

 5   for the Probate Court Number Four of Harris County,

 6   State of Texas, do hereby certify that the above and

 7   foregoing contains a true and correct transcription of

 8   all portions of evidence and other proceedings requested

 9   in writing by counsel for the parties to be included in

10   this volume of the Reporter's Record,        in the

11   above-styled and numbered cause, all of which occurred

12   in open court or in chambers and were reported by me.

13            I further certify that this Reporter's Record

14   truly and correctly reflects the exhibits,        if any,

15   admitted by the respective parties.

16            I further certify that the total cost for the

17   preparation of this Reporter's Record is $288.00

18   and was paid by Cantrell & Cantrell

19            WITNESS MY OFFICIAL HAND this the 19th day of

20            May,   2015.

21
                             /s/ Hipolita G. Lopez
22                           HIPOLITA G. LOPEZ, Texas CSR #6298
                             Expiration Date:  12-31-16
23                           Official Court Reporter
                             Probate Court Number Four
24                           Harris County, Texas
                             201 Caroline, 7th Fl.
25                           Houston, Texas 77002


         HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
                                                                                                                FILED
                                                                                                 4/17/2015 2:48:53 PM
                                                                                                          Stan Stanart
                                                                                                         County Clerk
                                                                                                         Harris County


                                                                   PROBATE COURT 4
                                       No. 425,576-401

 IN RE:                                       §            IN THE PROBATE COURT
                                              §
 DANIEL STEVEN WEINER                         §            NO. 4
                                              §
 1996 TRUST                                   §            HARRIS COUNTY, TEXAS


                               PLEA TO THE JURISDICTION

  Daniel Warren files this Plea to the Jurisdiction in response to Andy Weiner’s Counter and

Cross-Petition.

                               SUMMARY OF THE ARGUMENT

 1.    Daniel Warren asks the Court to dismiss Andy Weiner’s Counter and Cross-Petition

 because it was filed after Daniel Warren nonsuited all of his claims and the court lacks

 jurisdiction to rule on it under the holding of Greenberg v. Brookshire, 640 S.W.2d 870 (Tex.

 1982).

                                        BACKGROUND

 2.    Daniel Warren is the sole beneficiary of the Daniel Steven Weiner 1996 Trust (the

 “Trust”). The Trust was created on March 20, 1996 by Andy I. Weiner and Katherine R.

 Warren (formerly Katherine F. Weiner), who are also the co-trustees.

 3.       On April 22, 2014, Daniel Warren filed a Plea in Intervention in Cause No. 425,577,

 In Re David Abraham Weiner 1994 Trust, suing Andy Weiner for breach of fiduciary duty

 for borrowing substantially all of the Trust assets for Andy Weiner’s own personal use,

 commingling the Trust assets with Andy’s personal funds, failing to prudently invest the

 Trust assets, and failing to render an accounting upon Daniel’s request.

 4.    On July 8, 2014 Andy Weiner asserted various affirmative defenses, including that his


                                                                                          EXHIBIT
                                                                                                             exhibitsticker.com




                                                  1


                                                                                            TAB F
“actions were justified, excused and/or authorized by the terms of the Daniel Steven Weiner

1996 Trust” and “Ambiguity.” [See attached Exhibit A]

5.    On October 24, 2014 Andy Weiner filed a Second Amended Cross-Claim against

Katherine Warren in Cause No. 425,577 seeking to hold Katherine responsible for any

damages, actions, inactions, and violations of the Trust Agreement, breach of her fiduciary

duty, removal, tortious interference with Andy’s ability to properly administer the Trust, and

reimbursement of Andy’s legal fees in defending the lawsuit.

6.   On November 17, 2014 the Court severed Daniel Warren’s suit against Andy Weiner

into a separate Cause No. 425,576-401, and ordered 24 docket entries to be moved to the

new case. [See attached Exhibit B] The Cross-Claim was not moved and remained in Cause

No. 425,577.

7.   Pursuant to the November 17, 2014 Order, Daniel Warren filed an Original Petition in

this Cause No. 425,576-401 on December 1, 2014 asserting the same claims as in his Plea in

Intervention filed in Cause No. 425,577. The Original Petition named Andy Weiner and

Katherine Warren as parties, but expressly stated that his Notice of Nonsuit against Ms.

Warren applies to this Cause No. 425,576-401.

8.    On February 10, 2015, Daniel challenged Andy Weiner’s Answer and Supplemental

Answer by Special Exceptions. After a hearing on the matter on February 17, 2015, the Court

ordered Andy Weiner to replead nine (9) of his thirteen (13) defenses by March 17, 2015.

Andy Weiner failed to do so.

9.   On March 10, 2015, Daniel Warren nonsuited all of his claims in this case and on March

16, 2015 the Court dismissed Daniel Warren without prejudice. [See attached Exhibit C].

10. On March 24, 2015, two weeks after Daniel Warren nonsuited his claims, Andy Weiner



                                              2
filed a Counter and Cross-Petition against Daniel and Katherine, attempting to join them as

parties to the nonsuited case.

                                 ARGUMENT & AUTHORITIES

11. Daniel Warren asks the Court to dismiss Andy Weiner’s Counter and Cross-Petition for

the following reasons:

12. Daniel Warren had an absolute right to nonsuit all of his claims on March 10, 2015 and

be dismissed from the case as long as it does not “prejudice the right of an adverse party to

be heard on a pending claim for affirmative relief.” (emphasis added) [TRCP 96, 162].

13. The right to nonsuit should be liberally construed in favor of the nonsuiting plaintiff.

[Greenberg v. Brookshire, 640 S.W.2d 870, 872 (Tex. 1982)].

14. When the defendant has no pending claims for affirmative relief, the plaintiff’s nonsuit

renders the merits of the underlying case moot and dismisses the entire case. A trial court

may not rule on a counter or cross claim filed after a nonsuit. [Greenberg, 640 S.W.2d at

871].

15.     Andy Weiner’s failure to replead the nine (9) affirmative defenses as ordered by the

Court left Andy’s only defenses as 1) that Daniel is not entitled to attorney fees, 2) Daniel

lacks standing, legal authority or capacity to sue, 3) Daniel’s claims are barred by the statute

of limitations, and 4) Daniel’s claims are barred because he has no legal or equitable basis

for recovery. [See attached Exhibit D]. These are not claims for affirmative relief under

TRCP 162.

16. Since Daniel has dropped all his claims, both the claims and the defenses in this case are

moot. A trial court has no jurisdiction to rule on a moot controversy. [Klein v. Hernandez,




                                               3
315 S.W.3d 1, 3 (Tex. 2010; Devon Energy Prod. Co., L.P. v. KCS Res., LLC, 450 S.W.3d

203, 209 (Tex. App.─Houston [14th Dist.] 2014, pet. pending on other grounds)].

17. In Greenberg v. Brookshire, the wife filed a counterclaim against her husband two days

after he nonsuited his divorce case against her. Over the husband’s objections, the trial judge

held a hearing on the wife’s counterclaim and entered an order pertaining to it.            In a

proceeding for mandamus relief, the Texas Supreme Court held that the trial judge should

not have proceeded with the hearing on the counterclaim and directed him to withdraw his

order pertaining to it. [Greenberg v. Brookshire, 640 S.W.2d 870 (Tex. 1982)].

18.   When a plaintiff files a nonsuit, the trial court loses jurisdiction of the entire case,

except jurisdiction to render the order of dismissal without prejudice, which this Court has

done. [Ault v. Mulanax, 724 S.W.2d 824, 828 (Tex. App.─Texarkana 1986, orig.

proceeding), also citing Greenberg v. Brookshire].

19. Similarly, in Ault v. Mulanax the defendant filed a cross-action against the plaintiff after

she had nonsuited all of her claims. The appeal court held that the trial court lost jurisdiction

of the entire case immediately upon the filing of the plaintiff’s nonsuit, except jurisdiction to

render the order of dismissal without prejudice. [Ault, 724 S.W.2d at 829].

20. Just as in Greenberg and Ault, when Daniel nonsuited this case, there were no pending

claims for affirmative relief filed by any party. As such, the trial court’s only recourse is to

dismiss the entire case without prejudice, as the Court has done.

21. Andy Weiner’s cross-claims against Katherine Warren have no impact on this case.

They were filed only in Cause No. 425,577, a separate cause of action. Nor do Andy

Weiner’s Counter and Cross-Petition have any impact on this case because they were filed




                                               4
after Daniel nonsuited his entire case. According, Daniel had an absolute right to dismiss his

entire case under the holding of Greenberg v. Brookshire.

22. A trial court cannot deny a litigant's right to nonsuit his case when affirmative relief is

not sought by an adverse party before the nonsuit. [Greenberg v. Brookshire, 640 S.W.2d

870, 871 (Tex. 1982)]. Andy Weiner had no claims for affirmative relief pending at the time

of Daniel’s nonsuit.

23. Accordingly, the Court should dismiss this entire case and Andy Weiner’s Counter and

Cross-Petition as it was filed after Daniel nonsuited his entire case.


                                        RELIEF REQUESTED

24. For these reasons, Daniel Warren asks the Court to set this Plea to the Jurisdiction for a

hearing and sign an order dismissing Andy Weiner’s Counter and Cross-Petition and this

entire case for lack of jurisdiction.

                                                Respectfully submitted,
                                                CANTRELL & CANTRELL, PLLC
                                                By: /s/ Carol A. Cantrell
                                                Carol A. Cantrell, Attorney for Daniel Warren
                                                State Bar No.: 24043592
                                                Meredith N. McIver
                                                State Bar No.: 24078974
                                                Cantrell & Cantrell, PLLC
                                                3700 Buffalo Speedway, Suite 520
                                                Houston, Texas 77098
                                                Telephone: (713) 333-0555
                                                Facsimile: (713) 333-0550
                                                ccantrell@cctaxlaw.com




                                                5
                              CERTIFICATE OF SERVICE

     I do hereby certify that a true and correct copy of the foregoing instrument has been
duly served by electronic delivery and facsimile on all parties and counsel of record indicated
below, on April 17, 2015.


 Sarah Patel Pacheco                        Thomas R. Conner
 Kathleen Tanner Beduze                     Conner & Lindamood, P.C.
 Crain Caton & James                        1221 Lamar, Suite 1010
 Five Houston Center,                       Houston, TX 77010
 1401 McKinney, 17th Floor                  tom@lawcl.com
 Houston, TX 77010                          713-654-8115 (facsimile)
 pacheco-efile@craincaton.com               ATTORNEY FOR KATHERINE R. WARREN
 713-658-1921 (facsimile)
 ATTORNEY FOR ANDY WEINER

                                                   /s/ Carol Cantrell
                                                   CAROL A. CANTRELL




                                               6
Oct. 23. 2013 3:35PM                                                                 No. 1344    P. 24



                                               NO_ 425,577

    INRE:                                           §                      IN PROBATE COURT
                                                    §
    DAVID ABRAHAM WEINER                            §                      NUMBER FOUR (4) OF
                                                    §
    1994 TRUST                                      §                      HARRIS COUNTY, TEXAS

                    ANSWER TO PETITION FOR TERMINATION OF TRUST

    TO THE HONORABLE JUDGE OF SAID COURT:

            Andy Weiner ("Mr. Weiner"), co-trustee of the David Abraham Weiner 1994 Tmst

   ("Tmst''), files this Answer to Original Petition for Termination of Tmst filed by Katherine F.

   Warren ("Ms. Warren") and David A Weiner kin/a David W. Wro-ren ("David"), and in suppOlt

   thereof respectfully shows the following:

                                                  I.
                                               Overview

   1.       Tho Original Petition for Termination of Trust ("Petition") is just anothe1· sad stage in

   Ms. Warren's systematic plan to exclude Mr. Weiner from his son's life. Mr. Weiner and Ms.

   Warren are currently patties to a family coUlt proceeding that arises from Ms. Warren's failure to

   comply with the terms of the Trust and a Judgment entered by the Family Court in their divorce,

  pending in the 309111 Judicial District Court of Harris County, Texas.

  2.       The Petition filed Jn this Comt seeks to gain complete control of funds gifted by Mr.

  Weiner's parents to the Trust established by both Mr. Weiner and Ms. Warren prior to their

  divorce. It cites no credible or legal basis to remove Mr. Weiner and/or terminate the Trust by

  distributing said funds either free of trust to David or into a Uniform Transfers to Minors Act

  account only Ms. Wan·en would control. And, while Mr. Weiner has historically attempted to

  accommodate Ms. Warren's various requests, he is unwilling to risk funds needed for David's


                                                                                                EXHIBIT
                                                                                                          exhibitsticker.com




                                                                                                   A
  onawoo]()Ql
 l76- 942296vl
        Oct. 23. 2013 3:35PM                                                                     No. 1344    P. 25




                 future education or sanction her ignoring provisions of a Judgment entered by the Family Court

                 in their divorce.

                 3.     Neither Mr. Weiner nor the named successor trustee is disqualified to serve as a trustee of

              the Trust. Mr. Weiner has never mishandled the Trust, has never harbored any hostility towai"ds

              David and has always acted in a prudent ffit\lll\er- even under the most difficult of circumstances

              created by Ms. Warren. Mr. Weiner has done so because he recognizes that David and the T!.·ust

              both need protection.

                                                               II.
                                                          B@ckgro!lnd

             4.         On December 13, 1994, Mr. Weiner and Ms. Warren established the Tmst for the benefit

             of their then-minor son, David. The irrevocable trust agreement provides that David is the

             primaq beneficiary and Mr. Weiner and Ms. Wan·en are the original co-trustees. In the event

             they are not able to serve, the tmst agreement provides that Bayle Weiner Dt-ubel shall serve as

             successor trustee.

             5.        Mr. Weiner's parents, David's grandparents, funded the Trust with the desire to provide

            for their grandson's education,

            6.         After David's grandparents' generous gifts, Ms. Warren systematically excluded Mr.

            Wehter and his family from David and his siblings' lives. By way of example, Ms. Warren

            facilitated in David changing his last name from his father's (Weiner) to a name with no family
                                                                     ..
            significance shortly after David's eighteenth birthday. And, Ms. Wan·en routinely belittled Mr.

            Weiner, his mother and his sisters in front of his sons, includh1g David.

            7.        Ms. Wanen filed for. divorce and, pursuant to an Agreed Decree of Divorce ("Divorce

            Decree") entered into by the 309th Judicial District Court of Hat1'ls County, Texas in Cause No.




                                                              2
.. -·-- . --·0928651000001.
           376 • 942296v I
Od. 23. 2013 3:35PM                                                                                     No. 1344   P. 26



    2011-01040 (the "Family Court Proceeding"), Mr. Weiner and Ms. Wanen were divorced on

    March 29, 2012. See Exhibit C to Ms. Wanen's Petition.

    8.      'rhe Divorce Decree addresses the Trust at issue in this case. Specifically, the Divorce

   Decree provides:

                          l'f iS ORDERED lhnt lhe following children's lruols are h•!d In lno'voo~ble

                    lrusl~. which sh~ll conllnue   &$   wrlllen, and lhal each partY wlllclaxa any and all
                   ·necessary slep~ to provide full r.<rlrusloa !JWner~hlp and control of eP<'h suo.h
                   acoou~l Including tho pl~clng of such ae<Jounls' In a dsposll. ,and ly!Jhdrawal
                   agreement requlrlng both co-ltO$Ioe~ to dlsburae funds; aleo knowp        a~   an "and"
                   a<;counl:      (
                         1.     Fldellly rrusl A~l ending In 118634 (Pavld); -.      •.
                        . 2,   FldelllyTrnsl Ao~t E:ndlhgln #3966 (Daniel); end
                         3,    f.ldellly TrusfA~ot Ending In i/1942 (Micha~l),

   See Exhibit C to Ms. Wmren's Petition, page 10.

   9.       Subsequent to the parties' divorce, Ms. Warren has continued her eff011s to alienate their

  children and has failed to comply with the terms of the Divorce Decree. For example, Ms.

  Warren has refused to provide a simple invoice to confirm an alleged significant tuition payment

  for David, who started his- fi·eshrnan year at Rice University this fall. Instead, she acknowledges

  in her affidavit that she wired trust funds without Mr. Weiner's required permission and consent.

  10.      The Petition seeks an order from this Cotu't to either distribute the Trust funds to David

  free of trust or, alternatively, to awm·d Ms. Wan·en sole and exclusive control over a new account

  (a Uniform Transfers to Minors Act account created for David's benefit), even though the Trust

  agreement and the Divorce Decree provide otherwise.




                                                             3
 092865/000001
 376 ·942296vl
Oct. 23. 2013 3:36PM                                                                    No. 1344     P. 27



                                                        m.
                                Answer to Petition fo1· Te1·mination of Trust

    11.      Mr. Weiner incorporates by reference the allegations contained within tho preceding

    Paragraphs 1 through 10.

             A.      Ge1zeml Deulttl

    12.      Mr. Weiner asserts a general denial, as authorized by Rule 92 of the Texas Rules of Civil

    Procedure, to each a11d every, all and singular, allegation contained in the Petition and

    respeptf\tlly requests that this Court and jury require Plaintiffs to ptove their claims, charges, and

   allegations by a preponderance of the evidence, as required by the Constitution and the laws of

   the State of Texas.

   13.      Mr. Weinel' respectfully reserves the right to file an amended answer in this cause in the

   manner authorized by the Texas Rules of Civil Procedure.

            B.     Affinnative Defenses

   14.      Pleading further and without waiving the foregoing, Plaintiffs' claims are barred in whole

   or in part, by the doctrine of res judicata.

   15.      Pleading further and without waiving the foregoing, Plaintiffs·' claims are halTed in whole

   or in p·art, by the doctrine of estoppel, including collateral estoppel.

   16.    · Pleading further and without waiving the foregoing, Plaintiffs' claims are barred in whole

  or in pillt, by the doctrine of unclean hands:

  17.      Pleading further and without waiving the foregoing, Plaintiffs' claims aro barred in whole

  or in part, by the terms of the Trust.

  18.      Pleading further arid without waiving the foregoing, Plaintiffs are not entitled to

  attorneys' fees under Section 114.064 of the Texas Trust Code or otherwise.




                                                       4
  092865/00000L
  376. 942296\'1
Oct. 23. 2013 3:36PM                                                                   No. 1344    P. 28



                                                     IV.
                                            Request for Jury Tl'ial

    19.       Pleading further, and without waiving the foregoing, Mr. Weiner demands a trial by jury

    and hereby tenders payment.

                                                      v.
                                           Request fol' })isclosul'e

   20,        Pursuant to Rule 194 of the Texas Rules of Civil Procedure, Plaintiffs are each requested

    to disclose, within 30   d~ys   of service of this request, the information or material described in

   Rule l94.2(a)- (i).

             WHEREFORE, Mr. Andy Weiner respectfully requests that Plaintiffs recovet nothing by

   their suit, and for such other and further relief as to which he may show himself justly entitled to

   receive.

                                                           Respectfully submitted,

                                                           CRAIN, CATON & JAMES,
                                                           A PROF •   NA CORPORATION




                                                           Attomeys for Andy Weiner




                                                     5
  092MSI~9QOQI ..
  376 -942296vl
Oct. 23. 2013 3:36PM                                                                 No. 1344    P. 29



                                    CERTIFICATE OF SERVlCE

    I hereby certifY that a true and correct copy of the foregoing instrument has been forwatded to:

             Carol A. Cantrell
             Meredith N. Mciver
             Cantrell & Cowan, PLLC
             3700 Buffalo Speedway, Suite 520
             Houston, Texas 77098
             Facsimile: (713) 333-0550                                    . ~
    by facsimile and/or certified mail, return receipt requested, on the~ay of October, 20l3.




                                                    6
    09286S/OOOOO I
    J76 :9m96vr ·
                                                                                                               FILED
                                                                                                 7/8/2014 3:34:04 PM
                                                                                                        Stan Stanart
                                                                                                        County Clerk
                                                                                                       Harris County



                                            NO. 425,577

IN RE:                                           §                   IN PROBATE COURT
                                                 §
DAVID ABRAHAM WEINER                             §                   NUMBER FOUR (4) OF
                                                 §
1994 TRUST                                       §                   HARRIS COUNTY, TEXAS

                       FIRST SUPPLEMENT TO ORIGINAL ANSWER

TO THE HONORABLE JUDGE OF SAID COURT:

         Andy Weiner (“Mr. Weiner”), co-trustee of the David Abraham Weiner 1994 Trust, files

his First Supplement to Original Answer in response to Petitioner David W. Warren f/k/a David

A. Weiner’s (“Petitioner”) Second Amended Original Petition and Intervenor Daniel Steven

Weiner’s (“Intervenor”) Original Petition in Intervention and, in support thereof, respectfully

shows the following:

                                              I.
                                       VERIFIED DENIAL

1.       Intervenor does not have standing, lacks the legal authority, or lacks capacity to sue and

is not entitled to recover in the capacity in which he has sued.

                                       II.
                        SUPPLEMENTAL AFFIRMATIVE DEFENSE

2.       Pleading further and without waiving the foregoing, Petitioner’s and Intervenor’s claims

are barred, in whole or in part, because Mr. Weiner’s actions were justified, excused and/or

authorized by the terms of the David Abraham Weiner 1994 Trust.

3.       Pleading further and without waiving the foregoing, Petitioner’s and Intervenor’s claims

are barred, in whole or in part, based on the equities.

4.       Pleading further and without waiving the foregoing, Petitioner’s and Intervenor’s claims

are barred, in whole or in part, because of ambiguity.




092865/000002
376 - 1096417v1
5.       Pleading further and without waiving the foregoing, Petitioner’s and Intervenor’s claims

are barred, in whole or in part, by the statute of limitations.

6.       Pleading further and without waiving the foregoing, Petitioner’s and Intervenor’s claims

are barred, in whole or in part, by the doctrine of comparative fault.

7.       Pleading further and without waiving the foregoing, Petitioner’s and Intervenor’s claims

are barred, in whole or in part, by the doctrine of contributory negligence.

8.       Pleading further and without waiving the foregoing, Petitioner’s and Intervenor’s claims

are barred, in whole or in part, because there is no legal or equitable basis for recovery.

9.       Pleading further and without waiving the foregoing, Petitioner’s and Intervenor’s claims

are barred, in whole or in part, by Katherine Warren f/n/a Katherine Friedman Weiner.

10.      Pleading further and without waiving the foregoing, Intervenor’s claims and/or defenses

are barred, in whole or in part, because of lack of standing and/or because he lacks a judiciable

interest in the David Abraham Weiner 1994 Trust.

                                           III.
                                   SUPPLEMENTAL PRAYER

11.      In addition to the relief sought in Mr. Weiner’s Original Answer to Petition to Terminate

Trust, Mr. Weiner prays that Petitioner David W. Warren f/k/a David A. Weiner takes nothing

by his Second Amended Original Petition and Intervenor Daniel Steven Weiner likewise takes

nothing by his Original Petition in Intervention, and for such other and further relief as to which

he may show himself justly entitled to receive.




                                                   2
092865/000002
376 - 1096417v1
                                                        Respectfully submitted,

                                                        CRAIN, CATON & JAMES,
                                                        A PROFESSIONAL CORPORATION



                                                        By: /s/ Kathleen Tanner Beduze
                                                            SARAH PATEL PACHECO
                                                            (TBA # 00788164)
                                                            KATHLEEN TANNER BEDUZE
                                                            (TBA # 24052205)
                                                            1401 McKinney, 17th Floor
                                                            Houston, Texas 77010
                                                            (713) 658-2323
                                                            (713) 658-1921 (Facsimile)

                                                        Attorneys for Andy Weiner


                                 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument has been forwarded to:

           Carol A. Cantrell / Meredith N.            Thomas R. Conner
           McIver                                     Conner & Lindamood, P.C.
           Cantrell & Cowan, PLLC                     1221 Lamar, Suite 1010
           3700 Buffalo Speedway, Suite 520           Houston, Texas 77010
           Houston, Texas 77098                       Facsimile: (713) 654-8115
           Facsimile: (713) 333-0550

by e-file, facsimile and/or certified mail, return receipt requested, on the 8th day of July, 2014.


                                                        /s/ Kathleen Tanner Beduze
                                                        KATHLEEN TANNER BEDUZE




                                                  3
092865/000002
376 - 1096417v1
                                         VERIFICATION

STATE OF TEXAS                       §
                                     §
COUNTY OF HARRIS                     §

         BEFORE ME, the undersigned authority, on this day personally appeared Andy I. Weiner

who, after being sworn, stated under oath that he is the person whose signature appears on this

document. The affiant has read the foregoing First Supplement to Original Answer and he verifies

that the information contained therein is true and correct based upon his personal knowledge.



                                                              einer, as Co-Trustee of the David
                                                         aham Weiner 1994 Trust


         Subscribed and sworn to before me on this   ~ day of July, 2014.



                                                 NOTARY PUBLIC IN
                                                 OF TEXAS




                                                4
Error! Unknown document property name.
                                            No. 425 ,577

        INRE:                                  §              IN THE PROBATE COURT
                                               §
        DAVID ABRAHAM WEINER                   §              N0.4
                                               §
        1994 TRUST                             §              HARRIS COUNTY, TEXAS


                         AMENDED ORDER ON MOTION TO SEVER

        On this date, the Court having considered Daniel W. Warren' s Motion to Sever and the
Court's written and verbal Orders on August 27-28, 2014, GRANTS the Motion to Sever as
follows. It is hereby:

        ORDERED that Daniel W. Warren shall restate the claims set forth in his Motion to
Sever as a new Original Petition by December 1, 2014 and complete service pursuant to the rules
that would apply to a new lawsuit. It is further,

        ORDERED that the Court Clerk assign Cause No. 425 ,576-401 to Daniel W. Warren 's
new Original Petition. It is further,

        ORDERED that Daniel W. Warren file all future pleadings, motions, and other papers
under Cause No . 425 ,576-401 as Petitioner rather than Intervenor. It is further,

        ORDERED that all prior discovery, orders, motions, responses and answers pertaining to
Daniel W. Warren in Cause No. 425 ,577 shall apply in the same manner as if such had occmred
in Cause No. 425 ,576-401 , and that the Clerk of this Court is hereby directed to transfer and file
copies ofthe following pleadings and orders from Cause No. 425,577 to Cause No. 425,576-401:

        1.      Daniel W. Warren's Original Petition in Intervention; docket entry date 4-22-14
        2.      Andy Weiner's Motion for Partial Summary Judgment (a copy of which shall
                remain filed in Cause No. 425 ,577); docket entry date 7-15-14
        3.      Andy Weiner' s Special Exceptions to the Original Petition in Intervention filed by
                Daniel W. Warren; docket entry date 8-5-14
        4.      Notice of Submission of Andy Weiner 's Motion for Partial Summary Judgment (a
                copy of which shall remain filed in Cause No. 425 ,577) ; docket entry date 8-5-14
        5.      Petitioners ' Notice of Nonsuit Against Katherine Warren (a copy of which shall
                remain filed in Cause No. 425 ,577); docket entry date 8-7- 14

                                                                                             EXHIBIT
                                                                                                       exhibitsticker.com




                                                                                                  B
6.     Andy Weiner' s Motion to Compel Depositions (a copy of which shall remain
       filed in Cause No. 425 ,577); docket entry date 8-14-14
7.     Petitioners ' Joint Motion for Partial Summary Judgment (a copy of which shall
       remain filed in Cause No. 425 ,577); docket entry date 7-1-14
8.     Motion for Continuance of Hearing on Motion for Pru1ial Summary Judgment (a
       copy of which shall remain filed in Cause No . 425 ,577); docket entry date 8-14-
       14
9.     Petitioners ' Response to Andy Weiner' s Motion to Compel (a copy of which shall
       remain filed in Cause No . 425 ,577); docket entry date 8-18-14
10.    Andy Weiner' s Special Exceptions to Petitioners ' Joint Motion for Partial
       Sunm1ary Judgment (a copy of which shall remain filed in Cause No. 425 ,577);
       docket entry date 8-22-14
11.    Petitioners ' Response to Andy Weiner' s Motion for Continuru1ce (a copy of
       which shall remain filed in Cause No. 425 ,577); docket entry date 8-25-14
12.    Petitioners ' Response to Andy Weiner' s Special Exceptions to Petitioners' Joint
       Motion for Partial Swmnary Judgment (a copy of which shall remain filed in
       Cause No. 425 ,577); docket entry date 8-25-14
13.    Order Granting Andy Weiner' s Special Exceptions to the Original Petition in
       Intervention filed by Daniel W. Warren; docket entry date 8-29-14
14.    Order Denying Motion for Sanctions; docket entry date 8-29-14
15 .   Order Pru1ially Granting and Partially Denying Andy Weiner's Special
       Exceptions to Petitioners' Joint Motion for Pru1ial Summary Judgment (a copy of
       which shall remain filed in Cause No. 425 ,577) ; docket entry date 9-4-14
16.    Daniel W. Warren ' s Motion to Sever; docket entry date 9-8-14
17.    Order Partially Granting and Partially Denying Andy Weiner' s Motion for Prutial
       Summary Judgment (a copy of which shall remain filed in Cause No . 425 ,577);
       docket entry date 9-26-14
18.    Order Granting Motion to Sever; signed 11-5-14
19.    Colllt' s Docket Sheet; docket entry date 8-29-14

20.    Andy Weiner ' s First Supplement To Original Answer; docket entry date 7-8-14

21.    Petitioner' s Response to Andy Weiner' s Motion for Prutial Traditional SlllTimary
       Judgment; docket entry date 8-5-14;

22.    Petitioner' s Application to Quash Deposition of Dru1iel Warren; docket entry date
       8-11-14;

23.    Order to Compel Depositions Granted ; docket entry date 8-29-14; and

24.    Petitioner's Responses to Andy Weiner ' s Special Exceptions to Petition m
                  Intervention and Motion for Sanctions; docket entry date 8-19-14.

 It is further,

       ORDERED that Cause No. 425 ,576-401 is subject to the deadlines set out in the Agreed
Docket Control Order dated August 27, 2014 relating to Cause No. 425,577. It is further,

       ORDERED that all costs related to the copying, transfer, and filing of items 1 through 24
herein be assessed against Daniel Warren. It is further,

       ORDERED that if Daniel W. Warren fails to file a new Original Petition by the 1st day of
December, 2014 as Cause No. 425,576-401 , his pleading in Cause No. 425,577 will be
dismissed.



       SIGNED on this _JJ_ day of /'J~                     ' 2014.




                                                      PRESIDING JUDGE
-""'
li"




                                              425,576-401

        IN RE:                                     §            IN THE PROBATE COURT
                                                   §
        DANIEL STEVEN WEINER                       §           N0.4
                                                   §
        1996 TRUST                                 §            HARRIS COUNTY, TEXAS
                                                   §


                ORDER GRANTING PETITIONER'S NONSUIT AND DISMISSAL


       The Court GRANTS Petitioner Daniel Warren ' s Notice of Nonsuit without prejudice and
       dismisses his claims against Respondent Andy Weiner without prejudice.



       Signed    ~o.>r~ \~         ,   2015


                                                  JUDGE CHRISTINE BUTTS
                                                  HARRIS COUNTY PROBATE COURT FOUR




                                                                                     EXHIBIT
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                                                                                         C
                                                 No. 425,576-401

  INRE:                                                §            IN THE PROBATE COURT
                                                       §
  DANIEL STEVEN WEINER                                 §            N0.4
                                                       §
  1996TRUST                                            §            HARRIS COUNTY, TEXAS


   ORDER ON DANIEL           WARRE~
                          S SPECIAL EXCEPTIONS TO ANDY WEINER'S
         ANSWER AND FIRST UPPLEMENT TO ORIGINAL ANSWER

  After considering Daniel W. Want 's Special Exceptions to Andy Weiner's Answer and
First Supplement to Original Answe[ the pleadings, response, reply, affidavits, and other
evidence on file, the Court finds      l         at Daniel Wan-en's Special Exceptions should be
GRANTED and Andy Weiner should                   plead the following affirmative defenses and cure their
defects as follows:
                 1-\o   f'\CITUt 11 1Ultt'
                   ~                   '
    I. Paragraph 14 of Andy Weiner'} Answer, which reads: "Plaintiffs' claims are barred, in
       whole or in part, by the doctrin~ of res judicata"
                                       1.



       ~-X--- Granted             --t----                  Denied
                                        !


   2. Paragraph 15, of Andy Weiner'~ Answer, which reads: "Plaintiffs' claims are barred, in
      whole or in part, by the doctrin9 of estoppel, including collateral estoppel"
                                        'I

       -----"1)(0---- Granted --+----Denied


   3. Paragraph 16 of Andy Weiner's Answer, which reads: "Plaintiffs' claims are barred, in
      whole or in patt, by the doctrin1 of unclean hands"

       ---fr--~ Granted                      '             Denied


   4. Paragraph 17 of Andy Weiner'~ Answer, which reads: "Plaintiffs' claims are baned in
      whole or in part, by the te1ms of the trust"

       _ _)<,_,__ _ Granted --+----Denied

   5. Paragraph 18, of Andy Weiner's Answer, which reads: "Plaintiffs' are not entitled to
      attomey's fees under Section 11~.064 of the Texas Trust Code or otherwise"

      _ _ _ _ _ Granted                )<                  Denied
                                                                                                   EXHIBIT
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                                  ij
                                      I,




                                  1:
                                      I


                                  i

6. Para raph I of Andy Weiner'J IFirst Supplement to Original Answer, which states that
   Petit oner "does not have stan'1ing, lacks the legal authority, or lacks capacity to sue
   and i not entitled to recover in rhe capacity in which he has sued"
                                       1
   - - t - - - Granted                         ';(   Denied


7. Para raph 3 of Andy Weiner's first Supplement to Original Answer, which states that
   Petitibner's "claims are barred, jn whole or in part, based on the equities"

        lx         Granted             :             Denied
                                           I

8. Para raph 4 of Andy Weiner's hrst Supplement to Original Answer, which states that
                                      ·b
   Petitipner's "claims are barred, whole or in part, because of ambiguity"
            I                              f


            ).{.   Granted                           Denied
        {

                                           I
9. Paragraph 5 of Andy Weiner's first Supplement to Original Answer, which states that
   Petitioner's "claims are barred, i~ whole or in part, by the statute of limitations"

   - - - - - Granted                                 Denied

10. Paragraph 6 of Andy Weiner's irst Supplement to Original Answer, which states that
    Petitioner's "claims are barred in whole or in part, by the doctrine of comparative
    fault"
                                      I
   _ __...,__ _ Granted - - +i't - - - - Denied
                                           1
II. Paragraph 7 of Andy Weiner's Rirst Supplement to Original Answer, which states that
    Petitioner's "claims are barred 'jin whole or in part, by the doctrine of contributory
    negligence"                     .

   _ __,.....__ _ Granted - - - 1 - i - - - Denied

12. Paragraph 8 of Andy Weiner's ·irst Supplement to Original Answer, which states that
    Petitioner's "claims are barred m whole or in part, because there is no legal or
    equitable basis for recovery"
   - - - - <"(0-vlkd
13. Paragraph 9 of Andy Weiner's "rst Supplement to Original Answer, which states that
    Petitioner's "claims are barrec in whole or in part, by Katherine Warren f/n!a
    Katherine Friedman Weiner"

   --XP----- Granted         ---+If---Denied




                                      '
    PRESIDING JUDGE




I
I
                                                                                                               FILED
                                                                                                5/12/2015 5:02:57 PM
                                                                                                         Stan Stanart
                                                                                                        County Clerk
                                                                                                        Harris County


                                                                                PROBATE COURT 4
                                        NO. 425,576-401

IN RE:                                         §                    IN PROBATE COURT
                                               §
DANIEL STEVEN WEINER                           §                    NUMBER FOUR (4) OF
                                               §
1996 TRUST                                     §                    HARRIS COUNTY, TEXAS

              ANDY WEINER’S RESPONSE TO PLEA TO THE JURISDICTION

TO THE HONORABLE JUDGE OF SAID COURT:

         Andy Weiner (“Mr. Weiner”), as co-trustee of the Daniel Steven Weiner 1996 Trust, files

his Response to Plea to the Jurisdiction filed by Daniel Warren f/k/a Daniel Steven Weiner

(“Daniel”), and in support thereof, respectfully shows the following:

                                             I.
                                          OVERVIEW

1.       Notwithstanding Daniel’s assertions to the contrary, Mr. Weiner’s claims against

Katherine Warren f/k/a Katherine Weiner (“Ms. Warren”) were properly on file when Daniel

filed his nonsuit. But, regardless, Mr. Weiner has an absolute right to initiate a new lawsuit to

resolve the construction and other issues pled in his Counter and Cross-Petition properly filed in

the above-referenced proceeding in accordance with Local Rule 2.2. Therefore, this Court

should retain the above-referenced lawsuit on its docket and deny Daniel’s Plea to the

Jurisdiction.

                                          II.
                                 FACTUAL BACKGROUND

2.       On March 20, 1996, Mr. Weiner and Ms. Warren established the Daniel Steven Weiner

1996 Trust (the “Trust”) for the benefit of their then-minor son, Daniel. The irrevocable trust

agreement provides that Daniel is the primary beneficiary and Mr. Weiner and Ms. Warren are




                                                                                            EXHIBIT
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                                                                                             TAB F-1
092865/000001
376 - 1495732v1
the original co-trustees. In the event they are not able to serve, the trust agreement provides that

Bayle Weiner Drubel shall serve as successor trustee.

3.         Mr. Weiner’s parents, Daniel’s grandparents, primarily funded the Trust with the desire

to provide for Daniel’s education.

4.         After Daniel’s grandparents’ generous gifts, Ms. Warren systematically excluded Mr.

Weiner and his family from Daniel’s life, as well as the lives of his brothers, David and Michael.

By way of example, Ms. Warren likely facilitated the process of Daniel changing his last name

from his father’s (Weiner) to a name with no family significance on his eighteenth birthday.

And, in 2011, Ms. Warren deceitfully made ulterior plans to celebrate Daniel’s birthday to

purposefully exclude Mr. Weiner. Further, Ms. Warren routinely belittled Mr. Weiner, his

mother and his sisters in front of his sons.

5.         On January 6, 2011, Ms. Warren filed for divorce from Mr. Weiner. Pursuant to an

Agreed Decree of Divorce (“Divorce Decree”) entered into by the 309th Judicial District Court

of Harris County, Texas in Cause No. 2011-01040 (the “Family Court Proceeding” or “Family

Court”), Mr. Weiner and Ms. Warren were divorced on March 29, 2012.

6.         Subsequent to the parties’ divorce, Ms. Warren has continued her efforts to alienate their

children and has failed to comply with the terms of the Divorce Decree.

7.         On September 30, 2013, Ms. Warren, as co-trustee of the Trust, filed a lawsuit1 against

Mr. Weiner, seeking an order from this Court to terminate the Trust and for the Trust funds to be

distributed to a Uniform Transfers to Minors Act account created for Daniel’s benefit over which

Ms. Warren would have sole control, even though the Trust agreement and the Divorce Decree

provide otherwise. See Original Petition, attached hereto, without exhibits, as Exhibit A and

incorporated by this reference.
1
    Cause No. 425,576; In re: Daniel Steven Weiner 1996 Trust, In Probate Court No. 4 of Harris County, Texas.


                                                          2
092865/000001
376 - 1495732v1
8.       On October 23, 2013, Mr. Weiner filed a Plea to the Jurisdiction in Cause No. 425576,

alleging that the District Court had jurisdiction over the claims brought by Daniel because they

related to the Family Court Proceeding.

9.       On November 4, 2013, Ms. Warren, as next friend of Daniel, filed a First Amended

Original Petition in Cause No. 425,576 in which she requests for the Trust to be modified to

allow Daniel to become his own trustee upon reaching the age of 18. See First Amended

Petition, attached hereto, without exhibits, as Exhibit B and incorporated by this reference.

10.      On November 21, 2013, the Probate Court granted Mr. Weiner’s Plea to the Jurisdiction

in Cause No. 425576.

11.      On April 22, 2014, Daniel filed an Original Petition in Intervention in his older brother

David Weiner’s proceeding against Mr. Weiner.2 See Original Petition in Intervention, attached

hereto, without exhibits, as Exhibit C and incorporated by this reference.

12.      On July 2, 2014, Mr. Weiner filed his Cross-Claims against Ms. Warren in Cause No.

425,577 (where Daniel was an Intervenor), seeking to hold Ms. Warren equally responsible for

(1) all actions and alleged inactions of the trustees, (2) all claimed damages and relief sought by

David and Daniel, (3) all violations of the Trust agreements, including any scheme of collusion,

(4) the preparation of an accounting, and (5) payment of one-half of Mr. Weiner’s attorneys’ fees

and costs. See Cross-Claims, attached hereto, without exhibits, as Exhibit D and incorporated by

this reference.

13.      On July 8, 2014, Mr. Weiner filed his First Supplement to Original Answer, alleging,

among other claims and defenses, that Daniel has no standing to intervene in David’s case. See




2
 Cause No. 425,577, In re: David Abraham Weiner 1994 Trust, In Probate Court No. Four (4) of Harris County,
Texas (“David’s Case”).


                                                    3
092865/000001
376 - 1495732v1
First Supplement to Original Answer, attached hereto, without exhibits, as Exhibit E and

incorporated by this reference.

14.      On July 15, 2014, Mr. Weiner filed his Motion for Partial Traditional Summary

Judgment.

15.      On August 7, 2014, Mr. Weiner filed his First Supplement to Cross-Claims against Ms.

Warren, incorporating, by reference, the cross-claims and factual background supporting same

contained within his Motion for Partial Traditional Summary Judgment.

16.      Also on August 7, 2014, David and Daniel (as Intervenor in David’s Case) nonsuited

their claims against Ms. Warren in Cause No. 425,577.

17.      On September 8, 2014, pursuant to an order of this Court, Daniel filed a Motion to Sever

in David’s Case.

18.      On September 25, 2014, the Probate Court partially granted and partially denied Mr.

Weiner’s Motion for Partial Traditional Summary Judgment finding that, pursuant to the terms of

David’s Trust: (i) a trustee of the trust may retain, invest or reinvest in assets unproductive of

interest and wasting assets, (ii) the diversification required under the Texas Trust Code and

Texas common law, if any, does not apply to the Trust; (iii) Mr. Weiner and Ms. Warren had a

duty to jointly administer the Trust; (iv) in order to delegate her powers or duties to Movant as

co-trustee of the Trust, Ms. Warren must have filed a written instrument with the records of the

Trust; and (v) Mr. Weiner has no liability relating to his actions as trustee other than for acts and

omissions found to be made with gross negligence, bad faith or fraud.

19.      On October 24, 2014, Mr. Weiner filed his Second Amended Cross-Claims against Ms.

Warren in Cause No. 425,577. See Second Amended Cross-Claims, attached hereto as Exhibit F

and incorporated by this reference. As clearly expressed in the Second Amended Cross-Claims,




                                                 4
092865/000001
376 - 1495732v1
the cross-claims relate to the David Abraham Weiner 1994 Trust as well as Daniel’s Trust

because, at the time of filing, Daniel’s intervention had not yet been severed into its own cause

of action. Exhibit F ¶1.

20.      On November 5, 2014, Daniel’s claims were severed into their own cause of action in the

instant proceeding. An amended order, specifically identifying the pleadings and orders to be

transferred into the new cause of action, was signed on November 17, 2014.3

21.      On December 1, 2014, Daniel, pursuant to this Court’s order, filed his Original Petition in

Cause No. 425,576-401.

22.      On March 10, 2015, Daniel nonsuited his claims against Mr. Weiner.

23.      On March 24, 2015, Mr. Weiner filed his Counter and Cross-Petition. See Counter and

Cross-Petition, attached hereto, without exhibits, as Exhibit G and incorporated by this

reference. In his Counter and Cross-Petition, Mr. Weiner (1) asked for the Court to construe the

language of the Trust agreement; (2) alleged the following cross/counterclaims against Ms.

Warren: breaches of fiduciary duty, reimbursement, removal as trustee, tortious interference with

administration; and (3) requested the appointment of a corporate trustee. While no monetary

claims were brought against Daniel, he was joined as a necessary party because he is the primary

beneficiary of Daniel’s Trust. See TEX. PROP. CODE § 115.011.

24.      On March 24, 2015, Mr. Weiner’s counsel took Ms. Warren’s court-ordered deposition.

Ms. Cantrell attended that deposition.

25.      On April 2, 2015, Daniel, along with his brothers, David and Michael, jointly filed an

Original Petition in the 133rd Judicial District of Harris County, Texas, Cause No. 2015-19320.

See Original Petition, attached hereto, without exhibits, as Exhibit H and incorporated by this


3
 Due to an administrative error, Mr. Weiner’s Second Amended Cross-Claims were inadvertently left off of the list
of documents to be transferred to Cause No. 425,576-401.


                                                       5
092865/000001
376 - 1495732v1
reference. When the three related cases currently pending in Probate Court No. 4 of Harris

County, Texas (Cause No. 425,576-401, Cause No. 425,577, and Cause No. 425,578) are

compared to the District Court case, the parties and issues are the same.

26.      On April 17, 2015, Daniel filed a Plea to the Jurisdiction in this Court, alleging that Mr.

Weiner’s cross-claims against Ms. Warren, pled in his Second Amended Cross Claims and his

Counter and Cross-Petition, have “no impact on this case.” Motion at ¶21. As further discussed

below, Daniel’s request for dismissal is misguided, as Mr. Weiner’s affirmative claims against

Ms. Warren were properly in front of this Court prior to the nonsuit being filed. But, regardless,

Mr. Weiner had every right – and did – initiate cross and counter claims. Even if considered a

new lawsuit, the Counter and Cross-Petition is validly before this Court and Mr. Weiner has

properly and diligently sought to serve Daniel, in compliance with the Texas Rule of Civil

Procedure.

27.      On May 4, 2015, Mr. Weiner filed a Plea in Abatement and, subject thereto, Original

Answer in Cause No. 2015-19320.

                                           III.
                                   ARGUMENT & AUTHORITY

28.      Daniel’s Plea to the Jurisdiction is his last ditch effort to have his case tried in the District

Court, instead of this Court where he originally filed his claims against his father, Mr. Weiner.

29.      Daniel’s nonsuit nullifies the controversy by and between Daniel and Mr. Weiner; it does

not affect any pending claims for relief made by Mr. Weiner. In re Bennett, 960 S.W. 35, 38

(Tex. 1997). A party has an absolute right to nonsuit their own claims, but not someone else’s

claims they are trying to avoid. Tex. Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 31, 37 (Tex. 2008)

(emphasis in original).

30.      So long as the plaintiff pleads enough facts to affirmatively demonstrate the trial court



                                                    6
092865/000001
376 - 1495732v1
has jurisdiction over the suit, a court’s jurisdiction attaches upon filing a lawsuit. TEX. PROP.

CODE § 115.001; TDCJ v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). And, unless the pleadings

demonstrate the absence of jurisdiction, the court will assume it has jurisdiction over the case.

Peek v. Equip. Serv., 779 S.W.2d 802, 804 (Tex. 1989); Beacon Nat’l Ins. v. Montemayor, 86

S.W.3d 260, 266 (Tex. App.—Austin 2002, no pet.).             In the event this Court “lost” its

jurisdiction upon Daniel’s nonsuit – which Mr. Weiner vehemently disagrees – this Court gained

jurisdiction upon the filing of Mr. Weiner’s Cross and Counter-Petition.

31.      Rule 162 of Texas Rule of Civil Procedure governs dismissal and nonsuits. Rule 162

provides that “[a]ny dismissal pursuant to this rule shall not prejudice the right of an adverse

party to be heard on a pending claim for affirmative relief.” TEX. R. CIV. P. 162. A claim for

affirmative relief is one “on which the claimant could recover compensation or relief even if the

plaintiff abandons his cause of action.” Univ. of Tex. Med. Branch at Galveston v. Est. of

Blackmon ex rel. Shultz, 195 S.W.3d 98, 101 (Tex. 2006); BHP Petroleum Co., Inc. v. Millard,

800 S.W.2d 838, 841 (Tex.1990).

32.      Daniel falsely asserts that Mr. Weiner had no affirmative claims for relief pending at the

time of Daniel’s nonsuit. At the time of Daniel’s nonsuit, Mr. Weiner had the following cross-

claims, alleged in his Second Amended Cross-Claims, against Ms. Warren pending: (1)

contribution, (2) breaches of fiduciary duty, (3) removal of trustee, (4) tortious interference with

administration, and (5) attorneys’ fees and costs. See Exhibit F. These are claims for affirmative

relief under Rule 162 of the Texas Rules of Civil Procedure. TEX. R. CIV. P. 162; BHP Pet. Co.

v. Millard, 800 S.W.2d 838, 840-41 (Tex. 1990) (defendant’s request for declaratory judgment if

it seeks resolution of continuing issues); Leon Springs Gas Co. v. Restaurant Equip. Leasing Co.,

961 S.W.2d 574, 578 (Tex. App—San Antonio 1997, no pet.); Ulloa v. Davila, 860 S.W.2d 202,




                                                 7
092865/000001
376 - 1495732v1
204 (Tex. App.—San Antonio 1993, no writ) (counterclaim did more than resist plaintiff’s suit).

These are independent claims for affirmative relief, not merely derivative claims. In re Estate of

Kidd, 812 S.W.2d 356, 359 (Tex. App.—Amarillo 1991, writ denied).

33.      Further, in his Counter and Cross-Petition, filed prior to this Court signing Daniel’s

request for dismissal, Mr. Weiner alleged the following claims: (1) construction of the Trust

Agreement, (2) breach of fiduciary duty, (3) reimbursement, (4) removal as trustee, (5) tortious

interference with administration, and (6) petition to modify trust and request for appointment of a

corporate trustee. See Exhibit G.

34.      Daniel relies upon Greenberg v. Brookshire and Ault v. Mulanex in support of his

position that this lawsuit should be dismissed, despite Mr. Weiner’s valid pending claims.

Greenberg v. Brookshire, 640 S.W.2d 870 (Tex. 1982); Ault v. Mulanex, 724 S.W.2d 824 (Tex.

App—Texarkana 1986, orig. proceeding). However, these cases are readily distinguishable.

Greenberg was a divorce action wherein the lower court conducted a hearing on an amended

pleading after the husband nonsuited his claims. Unlike the facts to the instant case, there were

only two parties to the lawsuit – a husband and a wife – and the wife filed a counterclaim against

her husband and requested a hearing on same after her husband filed a nonsuit. The lower court

conducted a hearing on the counterclaims, which the Texas Supreme Court held was in error, as

a plaintiff has an absolute, unqualified right to a nonsuit. Greenberg, 640 S.W.2d at 872. Ault

v. Mulanax is another divorce proceeding, specifically involving custody and child support issues

and; not relating, whatsoever, to the factual disputes at issue in the instant litigation. Ault v.

Mulanax, 724 S.W.2d at 828. Notwithstanding the factual differences, the Ault cases specifically

related to and involved the imposition of the Texas Family Code. Id. Furthermore, the legal

issues in Ault were jurisdictional – which court had dominant jurisdiction at the time the nonsuit




                                                8
092865/000001
376 - 1495732v1
was filed. Id. at 828. Like in Greenberg, the Texarkana Court of Appeal’s ruling in Ault is not

instructive to this Court, as the factual and legal matters at issue in Ault are grossly different and

irrelevant to the case at hand.

35.      Regardless of the gamesmanship of Daniel and his mother, Ms. Warren, and their

persistent litigious acts, Daniel’s nonsuit does not summarily dismiss the affirmative claims

brought by Mr. Weiner against Ms. Warren, which were filed prior to the nonsuit; Daniel cannot

nonsuit Mr. Weiner’s claims against Ms. Warren. Tex. Mut. Ins. Co., 251 S.W.3d at 37.

                                              V.
                                          CONCLUSION

36.      Mr. Weiner’s Second Amended Cross-Claims were properly on file prior to Daniel’s

Nonsuit. And, subsequent to Daniel’s nonsuit, but prior to the entry of dismissal, Mr. Weiner’s

Cross and Counter-Petition was filed.

37.      While Daniel’s nonsuit effectively eliminates the affirmative claims he had against Mr.

Weiner, it does nothing with respect to the claims alleged by Mr. Weiner against Ms. Warren.

This Court has jurisdiction over this case and the remaining claims between Mr. Weiner and Ms.

Warren.

38.      Accordingly, it would be improper to dismiss this case, in its entirety, because of the

remaining claims by Mr. Weiner against Ms. Warren.

         WHEREFORE, Andy Weiner respectfully requests that this Court, after oral hearing,

deny the Plea to the Jurisdiction filed by Daniel Warren f/k/a Daniel Steven Weiner, and for such

other and further relief, either at law or in equity, to which he may be justly entitled.




                                                  9
092865/000001
376 - 1495732v1
                                                      Respectfully submitted,

                                                      CRAIN, CATON & JAMES,
                                                      A PROFESSIONAL CORPORATION

                                                      By: /s/ Kathleen Tanner Beduze
                                                          SARAH PATEL PACHECO
                                                          (TBA # 00788164)
                                                          spacheco@craincaton.com
                                                          KATHLEEN TANNER BEDUZE
                                                          (TBA # 24052205)
                                                          kbeduze@craincaton.com
                                                          1401 McKinney, 17th Floor
                                                          Houston, Texas 77010
                                                          (713) 658-2323
                                                          (713) 658-1921 (Facsimile)

                                                      Attorneys for Andy Weiner




                                 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument has been forwarded to:

           Carol A. Cantrell                       Thomas R. Conner
           Cantrell & Cantrell, PLLC               Conner & Lindamood, P.C.
           3700 Buffalo Speedway, Suite 520        1221 Lamar, Suite 1010
           Houston, Texas 77098                    Houston, Texas 77010
           Facsimile: (713) 333-0550               Facsimile: (713) 654-8115

by e-file, facsimile and/or certified mail, return receipt requested, on the 12th day of May, 2015.

                                                      /s/ Kathleen Tanner Beduze
                                                      KATHLEEN TANNER BEDUZE




                                                10
092865/000001
376 - 1495732v1
                                                                                              PROBATE COURT 4
                                    No.    4 2 55 7 6
INRE:                                         §              IN THE PROBATE                   CO~RT
                                              §                                        :r          v!     Iii
                                              §              No •    .                 '1"!
                                                                                   ·\""?
                                                                                                   >k'
                                                                                                   uj.
                                                                                                          iZ
                                                                                                          V)     ;:Q·
DANIEL STEPHEN WEINER                         §                          --o
                                                                                  ·; Ji> )
                                                                                  ?;.~ .
                                                                                                          r'l
                                                                                                                 m
1996TRUST                                    HARRISCOUNT.j.~AA~
                                              §                                                                  ()
                                                            ... ,;,· ~ \
                 ORIGINAL PETITION FOR TERMINATION OF TRUs'I{f.' i'"
                                                                                 ·'··" t..
                                                                                ~--
                                                                                              !'
                                                                                                         -
                                                                                                         - m
                                                                                                            m
                                                                                                         :l <:   -
                                                                                IJo.                     ••
                                                                                                                0
                                                                                " ~
TO THE HONORABLE JUDGE OF SAID COURT:



1996 TRUST (the "Trust"), Petitioner herein, and files this Original Petition for Termination of

Trust, respectfully showing the Comt as follows:

                                           PARTIES

   l. Petitioner is an individual acting as co, trustee of the Trust. The sih1s of administration of

       the Trust is maintained in Houston, Han·is County, Texas. Petitioner brings this action in

       her capacity as co-h11stee of the Tmst pursuant to Texas Trust Code § 111.004(7). A true

       and correct copy of the trust agreement is attached hereto as "Exhibit A" and is

       incmporated for all purposes.

   2. Andy I. Weiner is an individual acting as co-tmstee of the Tmst. Andy I. Weiner is

      joined as a Respondent herein because he has an interest in this Trust under Texas Trust

      Code § 111.004(7) and is a necessary party pursuant to Texas Trust Code §

      115.0ll(b)(4). Andy I. Weiner cunently resides at 1200 Post Oak Blvd., Apartment 907,

      Houston, Texas 77056.

  3. Daniel S. Weiner, ("Primary Beneficiary") has an interest in this proceeding pursuant to

      Texas Trust Code § 111.004(7) and is joined as Respondent herein because he is

      cunently eligible, or potentially eligible to receive distributions of income and principal


                                                                                                              EXHIBIT
                                                                                                                        exhibitsticker.com




                                                                                                                TAB G
     fi·om the Trust.   Pursuant to Texas Tmst Code § 115.011(2) Daniel S. Weiner is a

    necessary party because he is the p1imary beneficiary named in the Tmst. Daniel S.

    Weiner was bom on March II, 1996 and he currently resides at 1226 Mnirfield Place,

    Houston, Harris County, Texas 77055. Petitioner requests to appear as next of fi'iend on

    behalf of Daniel S. Weiner. Daniel S. Weiner is a minor, and Petitioner is his mother. In

    the divorce decree, attached as "Exhibit B," entered into by Katheline F. Wan·en and

    Andy I, Weiner in Cause Number 2011-01040 in the Distlict CoUit of the 309'h Judicial

    Dishict in Harris County, Texas, Petitioner was awarded the exclusive right to represent

    her minor children in legal actions and to make decisions of substantial legal significance

    on behalf of her minor children. Texas Tmst Code§ 115.013(c)(3) permits a parent to

    represent her child as guardian ad litem or next of fi·iend if there is no conflict of interest

    and no guardian of the estate or guardian ad litem has been appointed.

                                      JURISDICTION

4. This Court has jurisdiction to grant the relief requested in this petition pursuant to Texas

   Tmst Code§ 115.001(d)(l) and Texas Probate Code§ 4G.

                                          VENUE

5. Venue of this proceeding is proper in tllis Court pursuant to Tex.as Tmst Code §

   115.002(b-2) and Texas Probate Code§ 8.

                                          FACTS

6. The Twst is an inter vivos trust created under Internal Revenue Code § 2503( c) by

   Katheline F. Wan·en and Andy I. Weiner by agreement dated March 20, 1996 for the

   benefit of their son, the Primary Beneficiary.




                                             2
 7. At the present time, the only pennissible beneficiary of the Trust is the Primary

     Beneficiary. The Trust is authorized under Section A-I to make distributions to the

    Primary Beneficiary as follows:

            During the tenn of the trust, the trustees may distribute as much or

            all of the Trust estate as, in the trustees' discretion, is in the

            Primary Beneficiary's best interests.

8. Pursuant to Section A-2 of the Trust, the Plimary Beneficiary may withdraw all or part of

    the Tn1st estate within 60 days after becoming age 21, and may thereby terminate the

    trust as to the part withdrawn.      If the Primaty Beneficiary does not exercise his

    withdrawal right, the T!ust continues 1mtil the Primary Beneficiary becomes age 30.

9. Section A-2 of the Tmst provides that in the event the Primary Beneficiary should die

    before the Trust tenninates, then all assets remaining in the T1ust shall be held or

    distributed by the T1ustee for the benefit of those in favor of whom the Primary

    Beneficiary exercises a power of appointment, or otherwise in the following order: (I) to

   the Primary Beneficiary's descendants, (2) if none of the descendants are then Jiving, to

   the hustors' descendants, (3) if none of the trusters' descendants are then living, to the

   trustors' heirs.

I 0. Section C-1 T1ust agreement provides that any distribution made to a beneficiary of the

   Trust may be made to a custodian for a minor beneficiary under the Uniform Gifts to

   Minors Act.

II. The trust had marketable securities and cash in the approximate value of $113,000 as of

   August 31, 2013.




                                            3
 12. The initial co-trustees of the Trust were Katherine A. Warren and Andy I. Weiner. Both

    of the initial co-hustees of the Trust remain the current co-trustees, and no other co-

    trustees have been appointed. In the event that Andy I. Weiner and Katherine F. Warren

    cease to act as tmstee, Bayle Weiner Drubel, Andy I. Weiner's sister, is appointed

    successor trustee under Section D-l(a) of the Tmst.

 13. The co-hustees of the Tn.1st are the parents of the Primary Beneficiary. Although the co-

    hustees were manied at the time the Trust was created, they were granted a divorce on

    March 29, 2012. From the time that the div01'ce was finalized, the co-trustees have been

    unable to agree on proper administration of the Trust.

14. Pursuant to the divorce decree attached as "Exhibit B," the Court ruled that the Trust

    should be administered according to its te1ms. Tltis requixes the co-trustees to act jointly,

    which has proved detrimental to the best interests of the Primary Beneficiary and

    contrary to the purposes ofthe Trust.

15. Texas Trust Code § 112.054(a)(3) provides that on the petition of a trustee, a Comt may

   order that the trustee be changed or that the Tmst be terminated if modification of

   administrative, non-dispositive terms of the tmst is necessary or appropriate to prevent

   waste or avoid impairment ofthe Tmst's administration.

16. Texas Trust Code§ 112.054(a)(2) provides that on the petition of a trustee, a Court may

   order that the tmstee be changed or that the Tmst be tenninated if, because of

   circumstances not known to or anticipated by the hustors, termination or modification of

   the Tmst will further the purposes oft he Trust.

17. Petitioner claims that the inability of the co-llustees to agree on the appropriate

   administration of the Trust assets has impaired the Tn1st's administration. The purposes



                                            4
     of the Tmst, to provide for the Primary Beneficiary, cannot be fulfilled if the co-tmstees

     cannot agree regarding what actions constitute the "best interests" of the Primary

     Beneficiary. Additionally, the cunent circumstances, i.e. the divorce of the co-tmstees,

     was not known to or anticipated by the tmstors. Tetmination or modification of the Trust

     is necessary due to the disharmony between the Tmst's co-trustees which prevents the

    co-trustees from administering the Tmst in the best interests of the Primary Beneficiary.

                                  RELIEF REQUESTED

 l. Petitioner requests that the Court order that the Tmst be tetminated and that the Trust

    estate be distributed to the Unifmm Transfers to Minors Act account created for the

    benefit of the DanielS. Weiner, Fidelity Account ending in #6843, over which Katherine

    F. Wanen was awarded sole and exclusive control in the divorce decree attached as

    "Exhibit B"; that continued administration of the Trust would defeat or substantially

    impair the accomplislm1ent of the Tmst; that such circumstances were not known to or

    anticipated by the tmstms upon creation of the Tmst; that termination of the Tmst will

    further the purposes of the Trust; that the Petitioner be awarded Court costs and expenses

    and legal fees fi·om the Trust estate; that the remaining assets of the Tmst, after payment

    of Court costs and expenses and legal fees, be distributed to the Fidelity Account ending

   in #6843; and that the Court enter such other orders as may be approp1iate to provide for

    the delivery of all Tmst assets fi·om Katherine F. Warren and Andy I. Weiner to the

   Fidelity Account ending in #6843.

2. Petitioner altematively requests that the Comi order that the co-trustees be changed; that

   the Court appoint an independent corporate tmstce; that replacing the co-trustees with an

   independent corporate tmstee will ftniher the purposes of the Trust; that modification of



                                            5
    the Trust is necessary or appropriate to prevent waste or avoid impairment of the Ttust's

    administration; that the Petitioner be awarded Court costs and expenses and legal fees

    from the Trust estate; that the remaining assets of the Trust, after payment of Court costs

    and expenses and legal fees, be distributed to an independent corporate trustee; and that

    the Court enter such other orders as may be appropriate to provide for the delivery of all

    Trust assets fi·om Katherine F. Wall'en and Andy I. Weiner to the independent corporate

    trustee.

3. After the hearing on this petition, if the Comt tenninates the Trust or appoints a corporate

    trustee in place of the current co-trustees, Katherine F. Warren will submit a final

    accounting that describes all of the actions she has taken as co-tntstee of the Tmst. In

    that event, Petitioner asks the Court to review the final accounting, and to enter an order

   approving the accounting and discharging Katherine F. Wanen from any liabilities in

   connection with her actions as co-trustee of this Trust, including the termination.

4. Petitioner brings this action for the puqJose of preserving and protecting the interests of

   the Trust and its Primary Beneficiary. The relief sought herein is necessary to enable the

   Tntst to fulfill its purposes as created by the tmstors. Accordingly, Petitioner is entitled

   to recover reasonable attorney's fees and coutt costs fi·om the Trust pursuant to Texas

   Trust Code§ 114.064. If any of the other parties to this proceeding retain counsel to

   represent their interests in this cause, including counsel appointed by this Comt, the

   Court should detetmine whether all or any portion of the attorney's fees and court costs

   incuJTed by these parties should be paid by the Trust.




                                            6
                                            PRAYER

        WHEREFORE PREMISES CONSIDERED, Petitioner prays that the Com! grant the

requested relief. Petitioner further prays for such other and further relief to which Petitioner is

justly entitled.

                                                     Respectfully submitted,



                                                    Cantrell & Cowan, PLLC




                                                    By:    !JJ~
                                                    Carol A. Cantrell, Attomey for Petitioner
                                                    Texas Bar No.: 24043592
                                                    Meredith N. Mciver
                                                    Texas Bar No.: 24078974
                                                    3700 Buffalo Speedway, Suite 520
                                                    Houston, TX 77098
                                                    Phone: 713-333-0555
                                                    Fax: 713-333-0550




                                               7
                               CERTIFICATE OF SERVICE

       I certif'y that on September 30, 2013, I served a tme and correct copy of the foregoing
instrument by cetiified mail, return receipt requested to the following:


Andy I. Weiner
1200 Post Oak Blvd.,
Apartment 907,
Houston, Texas 77056




Carol
        llA£~~11.
        ~antrell
                                     No. _ _ _ _ _ __

 INRE:                                         §               IN THE PROBATE COURT
                                               §
                                               §               NO. _____________
DANffiL STEPHEN WEINER                         §
1996TRUST                                      §               HARRIS COUNTY, TEXAS

                                       FINAL JUDGMENT

           On the ___ day of _ _ _ _ _ _ _ _ _, 2013, came on to be heard the Original

Petition for Termination of Trust in the above-entitled and numbered cause by Katherine F.

Warren, co-trustee of the DANIEL STEPHEN WEINER 1996 TRUST. Petitioner appeared

through her duly authorized representative and attomey of record and mmounced ready for trial.

Respondent Andy I. Weiner appeared by and through his duly authorized representative and

attomey of record and allllounced ready for trial. No jury having been demanded by any patiy,

all issues of fact and law were submitted to the Court for decision.

       Having reviewed the pleadings and other papers on file in this cause; and having

considered the evidence presented at trial and the arguments of counsel, the Court finds as

follows:

   1. This Court has jurisdiction and venue of this action.

   2. All necessary patiies to this action are properly before the Court and have been duly

       served with citation in the mallller required by law.

   3. The DANIEL STEPHEN WEINER 1996 TRUST (hereinafter referred to as the "Trust")

       is an inter vivos trust created by Katherine F. Warren and Andy I. Weiner by agreement

       dated March 20, 1996 for the benefit of their son, Daniel S. Weiner (hereinafter referred

       to as the "Primary Beneficiary").

   4. The current co-trustees of the Trust are Katherine F. Warren and Andy I. Weiner.
 5. Texas Trust Code§ 112.054(a)(3) provides that on the petition of a trustee or beneficiary,

    a Comt may order that the tmstee be changed or that the Trust be te1minated if

    modification of administrative, non-dispositive terms of the trust is necessary or

    appropriate to prevent waste or avoid impairment of the Tmst's administration.

6. Texas Tmst Code§ 112.054(a)(2) provides that on the petition of a trustee or beneficiary,

    a Comt may order that the tmstee be changed or that the Trust be tem1inated if,· because

    of circumstances not known to or anticipated by the trustors, termination or modification

    of the Tmst will fmther the purposes of the Tmst.

7. Petitioner has requested termination of the Trust contingent on the Court's finding that:

    (a) the inability of the co-hustees to agree on the appropriate administration of the Trust

    assets has impaired the Trust's administration; and (b) due to the divorce of the co-

    trustees, a circumstance not known to or anticipated by the trustors when they created the

   Trust, termination will further the purposes of the Trust, which is to provide for the best

   interests of the Primary Beneficiary.

8. Petitioners have alternatively requested that the co-trustees be replaced by an independent

   cmporate trustee, if available, contingent on the Court's finding that: (a) the inability of

   the co-trustees to agree on the appropriate administration of the Trust assets has impaired

   the Trust's administration; and (b) due to the divorce of the co-trustees, a circumstance

   not known to or anticipated by the trustors when they created the Tmst, modification of

   the Tmst will further the p\ll'poses of the Trust, which is to provide for the best interests

   of the Primary Beneficiary.




                                            2
     9. The co-trustees have tendered an accounting of their actions as co-trustee of the Tn1st

         (the "Final Accounting").     The Final Accounting reflects that the co-trustees have

         administered the Tmst in accordance with the requirements of Texas law.

     10. The Final Accounting should be approved in all respects, and the co-trustees should be

        released and discharged from any and all liabilities arising out of or in any way related to

        the administration of the Trust or the Trust termination.

     11. The Tmst should be tenninated and the remaining Trust estate, after payment of all Comt

        costs and expenses and legal fees should be distributed to the Unifonn Transfers to

        Minors Act account created for the benefit of the Daniel S. Weiner, Fidelity Acco<mt

        ending in #6843.

    12. Katherine F. Warren brought this action for the purpose of preserving and protecting the

        interests of the Trust and its Primary Beneficiary. The relief sought in this action was

        necessary to enable the Trust to accomplish the purposes of the Trust as established by

        the trustors. Accordingly, Katherine F. Warren is entitled to recover her reasonable and

        necessary attorney's fees and litigation expenses fi·om the Trust pursuant to Texas Trust

        Code § 114.064.



       It is therefore, ORDERED, ADJUDGED, and DECREED that the Trust is hereby

terminated; that the termination shall be effective immediately upon the entry of this Final

Judgment by the Court; that the co-trustees are directed to deliver the remaining Trust estate,

after payment of all Court costs and expenses and legal fees to the Fidelity Account ending in

#6843. The provisions of this Final Judgment shall constitute sufficient legal authority to all

persons owing any money to the Trust, having custody of any property of the Trust, or acting as



                                                3
 transfer agent of any property of the Tn1st, for payment or transfer of such money, property, or

 right without liability to Daniel S. Weiner, the Primary Beneficiary, and his legal successors in

 interest.

         It is further ORDERED, ADWDGED, and DECREED that the Final Accounting

submitted by the co-trustees is hereby approved in all respects, and that the co-trustees are

hereby released and discharged from any and all liabilities arising out of or in any way related to

the administration of the Tmst, including its termination.

         It is further ORDERED, ADmDGED, and DECREED that Katherine F. Warren is

entitled to recover her reasonable attomey's fees and comt costs of$_ _ _ _ _ _ from the

Trust pursuant to Texas Trust Code § ll4.064, and that these fees shall be paid prior to the

delivery of any propCJties to the Primary Beneficiary.

        It is fi.uther ORDERED, ADJUDGED, and DECREED that all :filing fees and Court costs

in this cause are hereby taxed against the Trust, for which execution shall issue if not timely

paid.

        SIGNED this _ _ _ day of _ _ _ _ _ _ _ _ , 2013.




                                                    Judge Presiding




                                               4
APPROVED AS TO FORM AND SUBSTANCE:


CANTRELL & COWAN, PLLC




Carol A. Cantrell, Attomey for Petitioner
Texas Bar No.: 24043592
Meredith N. Mciver
Texas Bar No.: 24078974
3700 Buffalo Speedway, Suite 520
Houston, TX 77098
Phone: 713-333-0555
Fax: 713-333-0550




                                            5
   I
   I
                                 Exhibit A


                      DANIEL STEVEN WEINER 1996 TRUST

        By this· trust agreement, Andy I. Weiner and Katherine Friedman
 weiner, husband and wife, both of Harris county, Texas, as
 11 trustors," establish the Daniel steven weiner 1996 Trust for the

 benefit of their son, Daniel Steven Weiner ("Daniel"), born
 Harch 11, 1996, Trusters grant, assign and deliver to Andy r.
 Weiner and Katherin.e Friedman Weiner, both 9f Harris county, Texas,
 as "trustees," the property described in Attachment A. Attachment
 A, which is captioned "Initial Contributions to the Daniel steven
 weiner 1996 Trust," is incorporated by reference as a part of this
 trust agreement.
      This trust agreement and the trusts. established by it are
 irrevocable. No person shall have the right to revoke or amend
 this trust agreement or any of its provisions. However, property
 acceptable to the trustee may be added to any trust from time to
 time in the future by trusters or by any other person (including
 additions pursuant to the provisions of the last will of any
 person).                                                       ·
      All references to "trustee" shall refer to the person or
 persons then acting as such.
       A.    PRIMARY TRUST
A-1. Distributions. The income of the trust may be accumulated
and retained, in whole or in part, or the trustee may distribute to
Daniel, from time to time, so much or all of the trust estate as,
in the trustee's discretion, is in Daniel's best interests.
A-2,    Termination.  Daniel may withdraw any part or all of the
trust . estate within 60 days after he becomes. age .21, and may
thereby terminate the trust as to the part withdrawn.    Exercise of
this w~·thdrawal right shall be by one or more written instruments
delivered to the trustee within the 60-day period. If or to the
extent that Daniel does not exercise this withdrawal right, the
trust shall continue until Daniel becomes age 30 or dies before
that age, at which time the trust estate shall be distributed:
       (a)    To Daniel.
      (b) If Daniel is not then living, to such one or more
persons, corporations or organizations (including Daniel's estate),
as Daniel appoints by a will which specifically refers to this
power of appointment. If or to the extent that Daniel does not
effectively exercise this power cf appointroent, the trust estate
shall be distributed:
       (1)   To Daniel's descendants.
     (2) If none of Daniel's descendants is then riving, to
trustors' descendants.
      ( 3) If none of trusters' descendants is then living,      to
 trusters' heirs.
 A-3. Pavment of Taxes.     If Daniel's will contains no contrary
 directions, the trustee shall pay from the trust estate the entire
 increment in taxes payable by reason of Daniel's death (including
 any interest or penalties thereon) to the extent (if any) that the
 total of such taxes is greater than would have been imposed if no
 portion of the trust estate were taken into account in determining
 such taxes.
      B.   CONTINGENT TRUSTS
B-1. Trusts Established. Any portion of a trust estate upon the
trusts termination (other than a portion withdrawn by Daniel
pursuant to Paragraph A-2) which would be distributable to a
beneficiary who is under age 30 or to a beneficiary who is under a
legal disability instead shall be distributed to the trustee of a
Contingent Trust (unless otherwise directed by the valid exercise
of a power of appointment).        Each beneficiary's portion so
distributed shall be held and administered as the initial trust
estate of a separate trust for the beneficiary.      However 1 if a
Contingent Trust is already in existence for that beneficiary, any
additional portion to be distributed to the trustee of a contingent
Trust for the beneficiary shall be added to the trust estate of the
existing contingent Trust.
B-2. Distributions.      The income of each Contingent Trust may be
accumulated and retained, in whole or in part, or the trustee may
distribute to the beneficiary for whom the trust was established,
from time to time, so much or all of the trust estate as, in the
trustee's discretion, is in the beneficiary's best interests.
B-3, Termination. Each Contingent Trust shall terminate when the
beneficiary for whom the trust was established has become age 30
and is under no legal disability or upon the beneficiary's earlier
death. Upon termination, the trust estate shall be distributed:
     (a)    To the beneficiary.
      (b) If the beneficiary is not then living, to such one or
more persons, corporations or organizations as the beneficiary
appoints by a will which specifically refers to this power of
appointment.   If none of the beneficiary's descendants is than
living, this power may not be exercised in favor of the
beneficiary, the beneficiary's estate, the beneficiary's creditors
or the creditors of the beneficiary's estate. If or to the extant
that the beneficiary does not effectively exercise this power of
appointment, the trust estate shall be distributed:
     (1)   To the beneficiary's descendants,

                                  -2-
      (2) If none of the beneficiary's descendants is then living,
 to the descendants of the beneficiary's nearest ancestor who was
 one of trusters' descendants and who has descendants then living,
      (3) If none of these persons is then living, to trusters,
 descendants.
      ( 4)     If none of trusters 1 descendants is then living,   to
 trustors' heirs.
      C,     DISTRIBUTIONS
 c-1, Distributions to or for Beneficiaries. During the term of a
trust, any distribution to be made to a beneficiary from the trust
may be made (i) to the beneficiary, (ii) if the beneficiary is
under a legal disability or if the trustee determines that the
beneficiary is unable to properly manage his affairs, to a person
furnishing support, maintenance or education for the beneficiary or
with whom the beneficiary is residing, for expenditure on the
beneficiary's behalf, or (iii) to a custodian for a minor
beneficiary, as selected by the trustee, under the uniform Gifts to
Minors Act of any state. Alternatively, the trustee may otherwise
apply all or a part of the distribution for the beneficiary's
benefit. However, no such distribution shall be made to a trustor,
to any spouse of a trustor, or in any manner that discharges a
legal obligation (including an obligation of support) of a trustor
or any spouse of a trustor. Any distribution under this paragraph
shall be a full discharge of the trustee with respect thereto.
c-2. Best Interests of Beneficiary, In making distributions in
the "best interests" of a beneficiary, the trustee may consider the
age of the beneficiary, the costs of the beneficiary's support,
maintenance, education and comfort without regard to any other
resources available to the beneficiary for these purposes, the
effect of any distribution upon the income and transfer tax
liability of the beneficiary or of the trust, and any other factors
deemed relevant by the trustee.
     D.      OFFICE OF TRUSTEE
D-1.   Successor Trustee, Co-Trustee,  The following provisions
shall apply to each separate trust established under this trust
agreement:
      (a) Successor ~'rustee. Should Andy I. l~einer or Katherine
Friedman Weiner cease to act as trustee, for any reason, the one
remaining shall continue to act as trustee. Should both Andy I.
Weiner and Katherine Friedman Weiner cease to act as trustees, for
any reason, trusters appoint Bayle Weiner Drubel as successor
trustee.


                                 -3-
       (b) Appointment of successor Trustee by Trustee, At any time
 after qualifying as trustee, any trustee may appoint a successor
 trustee to act in his place, either immediately or in the future
 upon any stated contingency, and may thereby supplement the
 provisions of subparagraph (a).
       (c) Appointment of successor Trustee by Beneficiaries. If at
 any time there is no trustee acting and none has been appointed, a
 majority of the beneficiaries (acting through the beneficiary's
 natural or legal guardian or legal representative, in the case of
 a beneficiary under a legal disability) who might then be entitled
 to receive a distribution from the trust estate shall appoint a
 successor trustee.
      (d)   Appointment of Co-Trustee.   The     trustee    (acting
 unanimously if more than one) may appoint one or more co-trustees,
     (e) !fuo May Be Appointed. A successor trustee or co-trustee
may be any individual, bank or trust company and may be domiciled
anywhere.
      (f) Procedure for Appointment. Appointment shall be made by
written instrument filed with the trust records.          Any such
appointment may be changed or revoked prior to the date it becomes
effective.   Any such appointment may be limited in any manner
deemed advisable by the person making the appointment, including,
for example, restricting the power over distributions as necessary
to avoid the imposition of any tax upon the trust, the appointee or
the appointee's estate.
D-2, Resignation of Trustee, A trustee may resign from a trust
without the necessity of any court proceeding upon meeting these
conditions:
      (a) Notice. At least 30 days' written notice    (if not waived)
shall be given to each beneficiary who might then     be entitled to
receive a distribution from the trust estate. If a    beneficiary is
under a legal disability, notice shall be given to    (or waived by)
the beneficiary's natural or legal guardian,
      (b)  Accounting.   I f and to tbe extent required by the
successor trustee, an accounting for the administration of the
trust shall be given to the successor trustee,      The successor
trustee shall be fully protected in relying upon such accounting,
D-3,    Rights and Liabilities,
       (a) Bond Not Required, No bond or other security shall be
       required of any trustee.
       (b)   Liabilities, This agreement shall always be construed in

                                  -4-
 favor of the validity of any act by or omission of any trustee. A
 trustee shall not be liable for any act or omission except in the
 case of gross negligence, bad faith or fraud.    Specifically, in
 assessing the propriety of any investment of a trust estate, the
 overall performance of the entire trust estate shall be taken into
 account.
      (c) Compensation. Each trustee shall be entitled to receive
 reasonable compensation for services actually rendered to a trust.
      E.   ADMINISTRATION
 E-1. General Powers of Trustee. To carry out the trust purposes
 but subject to any limitations stated elsewhere herein, the trustee
 of each trust shall have the following powers, which may be
 exercised free from court supervision, and which shall exist until
 all of the trust estate has been distributed:
      (a) Trust Estate. The trustee may invest and reinvest all or
any part of. the trust estate in property of any description and may
retain as a part of the trust estate any property acquired at any
time and in any manner. specifically, and without regard to the
provisions of any applicable state law, the trustee may retain, or
invest and reinvest in, property unproductive of income, shares of
open or closed end investment trusts or companies, wasting assets,
and any other property, regardless of location and without regard
to any requirement of diversification as to kind or amount.
      (b)  Business Interests. The trustee may continue operation
of any business entity, in any business form, with all or any part
of the trust estate, and may reorganize or liquidate any such
entity at any time.
      (c) Tl'ansfers. Loans. The trustee may lease 1 sell, transfer,
or encumber in any manner (including with purchase money mortgages)
all or any part of the trust estate, and may loan or borrow money
in any manner (including by joint and several obligations) ~lith or
1~ithout security.  Subject to the provisions of Paragraph E-J(a),
the trustee may purchase assets from the estate of a trustor and
may loan funds to the estate of a trustor at such rate of interest
and with such security as the trustee determines to be in the best
interests of the current beneficiaries of the trust.
      (d) Dealings Nith Related Parties, The trustee may deal with
any person or entity regardless of any relationship or identity of
any trustee to or with that person or entity and may hold or invest
all or any part of the trust estate in common or undivided
interests with that person or entity.
     (e) Agents. Employees. The trustee may employ and compensate
agents and other employees ~nd may delegate to them any and all
discretions and p01~ers,
                                -5-
       (f) Partitions, Distributions. The trustee may partition all
 or any part of any interest, may pay and receive such moneys or
 properties as may be necessary to equalize differences, and in so
 doing (i) may make any distribution of all or any part of the trust
 estate in any manner (including composing shares differently) and
 (ii) may evaluate any property, which valuation shall be binding on
 all beneficiaries.         .
      (g)   Claims, Controversies.    The trustee may maintain and
 defend any claim or controversy by or against the trust without the
 joinder or consent of any beneficiary.
       (h)    Additional Powers. In addition, the trustee shall have
 all rights, privileges and powers now or hereafter granted to
 trustees in Texas, including those granted under the Texas Trust
 Code,     Any subsequent legislation or regulation expanding or
 limiting the rights, privileges and powers granted a trustee shall
 apply to all trusts hereunder unless the trustee elects not to have
 such legislation or regulation apply to a particular trust by a
written instrument filed with the trust records.       However, the
provisions made for the various beneficiaries under this trust
agreement are exclusive. Any statute that purports to enlarge the
class of beneficiaries to whom distributions may be made or the
purposes for which distributions may be made shall not apply to any
trust. All trust powers may be exercised upon such terms as the
trustee deems advisable and may affect trust properties for any
length of time regardless of the duration of the trust. Generally,
and subject only to the terms of this trust agreement, the trustee
shall hold, manage, control, use, invest, reinvest, and dispose of
the trust estate to the same extent as if the trustee were the fee
simple owner thereof,
E-2.      Principal and Incomg Determinations.     The receipts,
disbursements and reserves of each trust may be a~located, on a
cash or accrual basis, between principal and 1ncome in the
trustee 1 s discretion without regard to the provisions of any
statute.     ~·o the extent the trustee does not exercise this
discretionary power, the provisions of the Texas Trust ·Code shall
control,
E-3,   Restrictions on the Exercise of certain Powers.
      (a) Dealings with Trust Estate, No power granted the trustee
shall be construed to enable any person to purchase, exchange, or
otherwise deal with or dispose of any trust estate for less than an
adequate consideration in money or money 1 s ~lol:-th or to authorize
loans to any person \dthout adequate interest,        No part of any
trust estate may be (i) loaned to a trustor or to any spouse of a
trustor or (ii) applied to the payment of premiums on policies of
insurance on the life of a trustor or on the life of any spouse of
a trustor,

                                -6-
       (b)   Distributions to or for Trustee. Any p01·1er to make
 discretionary distributions to or for the benefit of a person who
 is serving as trustee of a trust (including distributions to the
 person 1 s spouse and distributions in discharge of any legal
 obligation of the person) shall be exercisable solely by the
 trustee or trustees other than that person. If no other trustee is
 then serving, such power shall not be exercisable,
 E-4. Release and Delegations of Powers. Any power granted to a
 trustee may be released, in whole or in part, temporarily or
 permanently. Except as provided in Paragraph E-3 1 any such pot7er
 may be delegated, in whole or in part, temporarily or permanently,
 to any other trustee then acting. A release or delegation shall be
 by written instrument filed with the records of each trust to which
 the release or delegation applies,
      F.   DEFINITIONS AND GENERAL PROVISIONS
F-1. Trust Estate. "Trust estate" means all assets, however and
whenever acquired (including income and accumulated income), which
may belong to a trust at any given time.
F-2. Descendants. "Descendants" means the legitimate children of
the person or persons designated and the legitimate lineal
descendants of such children, and includes any person adopted
before becoming age 18 and the adopted person's descendants. A
posthumous child shall be considered as living at the death of his
parent. Whenever a distribution is to be made to the descendants
of any person, the property to be distributed shall be divided into
as many equal shares as there are living children of the person and
deceased children of the person who left descendants who are then
living, Each living child shall take one share and the share of
each deceased child shall be divided among his then living
descendants in the same manner. "Trusters' descendants" includes
only those persons descended from both trusters.
F-3.   Heirs.    Any distribution to be made to the "heirs" of a
person shall b<;> made to the individuals who would have inherited
the person's personal property if the person had died intestate at
the time the distribution is to be made, domiciled in Texas and not
married, under the laws of Texas in force on the effective date of
this trust agreement, with the shares of taking determined by those
laws. However, both trusters and any spouse of a trustor shall be
deemed to have died prior to the time that any such distribution is
to be made. A distribution to "trusters' heirs" shall be made to
the heirs of Andy I. Weiner.
F-4. Internal Revenue code.    "Internal, Revenue code" means the
Internal Revenue Code of 1986, as amended, or corresponding
provisions of any subsequent federal tax laws.


                               -7-
 F-5. other Terms, The use of any gender includes the other
 genders, and the use of either the singular or the plural includes
 the other.
 F-6. Spendthrift Provision. No beneficiary shall have the power
 to anticipate, encumber, or transfer his interest in any trust
 estate in any manner. No part of any trust estate shall be liable
 for or charged with any debts, contracts, liabilities or torts of
 a beneficiary or subject to seizure or other process by any
 creditor of a beneficiary.    Nothing in this paragraph shall be
 construed to limit the otherwise valid exercise of a power of
 appointment or right of withdrawal given by this trust agreement.
 F-7. Texas Law Applies. The situs of the trusts established under
 this trust agreement is Texas.     Wherever possible, the laws of
 Texas shall apply to the construction, administration and validity
 of each trust.
F-8, Maximum Term of Trusts. No trust shall continue for a period
longer than 21 years after the death of the last to die of trusters
and all of trusters' descendants who are living on the effective
date of this trust agreement. Any trust still in force at the end
of such period shall terminate, and the trust estate shall be
distributed to the beneficiary for whom the trust was established.
 F-9.   Powers of Appointment Exercisable by Beneficiaries.      In
 exercising a power of appointment given to a beneficiary by this
 trust agreement, the beneficiary may appoint the property subject
to the power outright to the appointee, in trust, or to a custodian
for the appointee under the Uniform Gifts to Minors Act of any
state. If the beneficiary appoints to a custodian, he may select
the custodian. If the beneficiary appoints in trust, he may select
the trustee or trustees, may establish such administrative terms
for the trust as he deems appropriate, and may impose lawful
spendthrift restrictions. He may give the trustee discretionary
powers over the income and principal, and may create a trust that
has several permissible distributees. He may create life interests
or other limited interests in some appointees with future interests
in favor of other appointees, may appoint different types of
interests among the appointees, and may create new powers of
appointment in a trustee or trustees or in any appointee. He may
impose lawful conditions on an appointment and,, in general, may
appoint to or among the appointees in any lawful manner.
In determining whether, in what manner and to what extent a
testamentary power of appointment has been exercised by a
beneficiary, the trustee may act in reliance upon a court order
admitting an instrument to probate as the beneficiary's last will
or an order finding that the beneficiary died intestate, Unless
~ri thin six months after the beneficiary 1 s death the trustee has
actual notice of the existence of proceedings to probate a will of
the beneficiary, the trustee shall assume that the beneficiary died
intestate. The foregoing provisions are intended to expedite the
prompt and efficient administration of the trust and to protect the
trustee from any action taken or distribution made in accordance
with these prov1sions. Nothing in this paragraph shall limit or
qualify any power of appointment given by this trust agreement or
any right which an appointee or taker in default of appointment may
have against any person receiving a distribution from the trustee
irrespective of the place of probate or of the time of discovery of
a will exercising the power or any other action taken in the
beneficiary's estate.
     G.   ACCEPTANCE BY TRUSTEE
By signing this trust agreement, the trustee (i) accepts these
trusts and all of the rights, powers and duties attached to the
office of trustee as provided herein, (ii) agrees to serve as
trustee of the Daniel Steven Weiner 1996 Trust and of any
Contingent Trusts which may be established under this trust
agreement, (iii) acknowledges receipt of the property described in
Attachment A, and (iv) agrees to hold and administer each trust
estate in accordance with the terms of this trust agreement.
    This trust agreement is executed effective as of the 20th day
of March, 1996.


                              Andy I. Weiner, Trustor and
                              Trustee


                              Katherine Friedman Weiner,
                              Trustor and Trustee




                              -9-
                        ATTACID1ENT A: INITIAL CONTRIBUTIONS
                       TO THE DANIEL STEVEN WEINER l996 TRUST



                                       $1.00




                                      Andy I, Weiner, Trustor and
                                      Trustee


                                      Kather~ne Fr~edman    We1ner,
                                      Trustor and Trustee
3669:palnso\01 57136




                                      -10-
                                             Exhibit B



                                         NO. 2011·01 040

   IN THE MATTER OF                                §                 IN THE DISTRICT COURT
   THE MARRIAGE OF                                 §                                  y5   jl.:s'
                                                   §


                                               1~§ E gosrH JUDICIAL DISTRicT s:f~
   KATHERINE F. WEINER
   AND
   ANDY I. WEINER                          F 01c   s oanlel
                                                   lot Clerk                    ·                   rt:C
  AND IN THE INTEREST OF             MAl2 9 2012
  DAVID A. WEINER, DANIELS.              §
  WEINER AND MICHAEL H. Tim•: --,ll§<i~eoo;oo,;;;:~.T"T""'"_ __
  WEINER, CHILDREN       ay              § o"""'            HARRIS COUNTY, TEXAS

                         AGREED FINAL DECREE OF DIVORCE

         On February 17, 2012, the Court heard the parties' agreement for the

 terms of their Agreed Final Decree of Divorce as set out in the parties' Mediated

 Settlement Agreement.          Andy I. Weiner and his attorney, Eileen M. Gaffney

 appearing for Joan F. Jenkins appeared In person and proved up the agreement.

After hearing the parties' agreement, the court set this case for entry.

Appearances

        Petitioner, Katherine F. Weiner, appeared at entry through her attorney of

record, Randy B. Wilhite and announced ready.

        Respondent, Andy I. Weiner, appeared in person and through attorney of

record, Joan F. Jenkins, and announced ready.

Record

       The making of a record of testimony was waived by the parties with the



Weiner- Agreed Final Decree of Divorce          Rl!OOROER'S MEMORANDUM                     Page 1
                                                T\lls lnslrumont Is of poor quality



                                                                                                    ~~
                                                       a\ lho \lme of Imaging
        consent of the Court.

        Jurisdiction .and Domicile

                The Court finds that the pleadings of Petitioner are in due form and contain

        all the allegations, information, and prerequisites required by law. The Court,

       after receiving evidence, finds that It has jurisdiction of this case and of all the

       parties and that at least sixty days have elapsed since the date the suit was filed.

                The Court further finds that, at the time this suit was filed, Petitioner had

       been a domiciliary of Texas for the preceding six-month period and a resident of

       the county In which this suit was flied for the preceding ninety-day period. All

       persons entitled to citation were properly cited.

       Jury

                A jury was waived, and questions of fact and of law were submitted to the

       Court.

       Agreement of Parties

                The Court finds that the parties have entered into an Agreement Incident to

       Divorce, in a document separate from this Final Decree of Divorce. The Court
:;;:
't     approves the agreement and incorporates it by reference as part of this decree as
 N

 ~     if it were recited herein verbatim and orders the parties to do all things necessary to
~
[:     effectuate the agreement. A copy of the agreement is not filed with the records of
<X>
.,.,
 ii    this Court.
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 50
0      Weiner- Agreed Final Decree of Divorce
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          ihe agreements In this Final Decree of Divorce were reached In mediation

 with Harry L. Tindall. This Final Decree of Divorce is stipulated to represent a

 merger of a mediated settlement agreement between the parties. To the extent

 there exist any differences between the mediated settlement agreement and this

 Final Decree of Divorce, this Final Decree of Divorce shall control In all instances.

 Divorce

         IT IS ORDERED AND DECREED that Katherine F. Weiner, Petitioner, and

Andy I. Weiner, Respondent, are divorced and that the marriage between them Is

dissolved on the ground of insupportabillty.

Children of the Marriage

         The Court finds that Petitioner and Respondent are the parents of the

following children:

         Name:                           David A. Weiner
         Sex:                            Male
         Birth date:                     June 14, 1994
         Home state:                     Texas
         Social Security number:         xxx-xx-x861
         Driver's license number
         and issuing state:              xxxxx273, Texas

         Name:                           DanielS. Weiner
         Sex:                            Male
         Birth date:                     March 11, 1996
         Home state:                     Texas
         Social Security number:         xxx-xx-x039
         Driver's license number
         and issuing state:              xxxxx996Texas



Weiner- Agreed Final Decree of Divorce
             I


                 Name:                           Michael H. Weiner
                 Sex:                            Male
                 Birth date:                     November 1, 1999
                 Home state:                     Texas
                 Social Security number:         xxx-xx-x735
                 Driver's license number
                 and Issuing state:              N/A

                 The Court finds no other children of the marriage are expected.

         Parenting Plan

                 The Court finds that the provisions In this decree relating to the rights and

        duties of the parties with relation to the children, possession of and access to the

        children, child support, and optimizing the development of a close and continuing

        relationship between each party and the children constitute the parties' agreed

        parenting plan.

        Conservatorship

                 The Court, having considered the circumstances of the parents and of the

        children, finds that the following orders are in the best interest of the children.

                 IT IS ORDERED that Katherine F. Weiner and Andy I. Weiner are appointed

        Joint Managing Conservators of the following children: David A. Weiner, Daniel
...
'.,.
 1i     s. Weiner and Michael H. Weiner.
J!"              IT IS ORDERED that, at all times, Katherine F. Weiner, as a parent joint
   '
"'
.."'~   managing conservator, shall have the following rights:

~              1.   the right to receive information from any other conservator of the
~       children concerning the health, education, and welfare of the children:


i
8       Weiner· Agreed Final Decree of Divorce                                   Page4
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                2.    the right to confer with the other parent to the extent possible befo~e
           making a decision concerning the health, education, and welfare of the children;

                 3.     the right of access to medical, dental, psychological, and educational
           records of the children;

                  4.      the right to consult with a physician, dentist, or psychologist of the
           children;

                5.    the right to consult with school officials concerning the children's
          welfare and educational status, Including school activities;

                   6.     the right to attend school activities;

                 7.     the right to be designated on the children's records as a person to be
          notified In case of an emergency;

                 8.    the right to consent to medical, dental, and surgical treatment during
          an emergency involving an immediate danger to the health and safety of the
          children; and

                9.    the right to manage the estates of the children to the extent the
          estates have been created by the parent or the parent's family.

                   IT IS ORDERED that, at all times, Andy I. Weiner, as a parent joint

          managing conservator, shall have the following rights:

                 1.   the right to receive information from any other conservator of the
          children concerning the health, education, and welfare of the children;

               2.    the right to confer with the other parent to the extent possible before
          making a decision concerning the health, education, and welfare of the children;

                3.     the right of access to medical, dental, psychological, and educational
          records of the children;

 li              4.      the right to consult with a physician, dentist, or psychologist of the
'E        children;
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(:)       Weiner· Agreed Final Decree of Divorce                                  Page5     vY
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       5.    the right to consult with school officials concerning the children's
 welfare and educational status, including school activities;

         6.     the right to attend school activities;

        7.     the right to be designated on the children's records as a person to be
 notified In case of an emergency;

        B.    the right to consent to medical, dental, and surgical treatment during
 an emergency involving an immediate danger to the health and safety of the
 children; and

       9.    the right to manage the estates of the children to the extent the
 estates have been created by the parent or the parent's family.

         IT IS ORDERED that, at all times, Katherine F. Weiner and Andy I. Weiner,

as parent joint managing conservators, shall each have the following dulles:

       1.     the duty to inform the other conservator of the children In a timely
manner of significant information concerning the health, education, and welfare of
the children; and

       2.    the duty to inform the other conservator of the children if the
conservator resides with for at least thirty days, marries, or intends to marry a
person who the conservator knows Is registered as a sex offender under chapter
62 of the Code of Criminal Procedure or Is currently charged with an offense for
which on conviction the person would be required to register under that chapter.
IT IS ORDERED that this Information shall be tendered In the form of a notice
made as soon as practicable, but not later than the fortieth day after the date the
conservator of the children begins to reside with the person or on the tenth day
after the date the marriage occurs, as appropriate. IT IS ORDERED that the
notice must include a description of the offense that is the basis of the person's
requirement to register as a sex offender or of the offense with which the person is
charged.      WARNING:        A CONSERVATOR COMMITS AN OFFENSE
PUNISHABLE AS A CLASS C MISDEMEANOR IF THE CONSERVATOR FAILS
TO PROVIDE THIS NOTICE.

         IT IS ORDERED that, during her periods of possession, Katherine F.


Weiner- Agreed Final Decree of Divorce
 Weiner, as parent joint managing conservator, shall have the following rights and

 duties:

        1.    the duty of care, control, protection, and reasonable discipline of the
 children;
        2.    the duty to support the children, including providing the children with
 clothing, food, shelter, and medical and dental care not involving an invasive
 procedure;

        3.    the right to consent for the children to medical and dental care not
 involving an invasive procedure; and

        4.      the right to direct the moral and religious training of the children.

        IT IS ORDERED that, during his periods of possession, Andy I. Weiner, as

parent joint managing conservator, shall have the following rights and duties:

       1.      the duty of care, control, protection, and reasonable discipline of the
children;

       2.    the duty to support the children, Including providing the children with
clothing, food, shelter, and medical and dental care not involving an invasive
procedure;

       3,    the right to consent for the children to medical and dental care not
Involving an Invasive procedure; and

       4.      the right to direct the moral and religious training of the children.

        IT IS ORDERED that Katherine F. Weiner, as a parent joint managing

conservator, shall have the following rights and duty:

       1.    the exclusive right to establish the primary residence and legal
domicile of the children in Harris County, Texas or a county that is contiguous to
Harris County, Texas, subject to the provisions hereinafter.

       2.      the exclusive right to consent to medical, dental, and surgical


Weiner· Agreed Final Decree of Divorce                                      Page?
 treatment involving Invasive procedures;

       3.     the exclusive right to consent to psychiatric and psychological
 treatment of the children;

        4.     the exclusive right to receive and give receipt for periodic payments
 for the support of the children and to hold or disburse these funds for the benefit of
 the children;

      5.     the exclusive right to represent the children In legal action and to
 make other decisions of substantial legal significance concerning the children;

      6.     the exclusive right to consent to marriage and to enlistment in the
 armed forces of the United States;

       7.   the right, subject to the agreement of the other parent conservator, to
make decisions concerning the children's education;
       B.   except as provided by section 264.0111 of the Texas Family Code,
the independent right to the services and earnings of the children;

       9.    except when a guardian of the children's estates or a guardian or
attorney ad litem has been appointed for the children, the independent right to act
as an agent of the children In relation to the children's estates if the children's
action is required by a state, the United States, or a foreign government; and

      10. the exclusive duty to manage the estates of the children to the extent
the estates have been created by community property or the joint property of the
parent.

        IT IS ORDERED that Andy I. Weiner, as a parent joint managing

conservator, shall have the right, subject to the agreement of the other parent

conservator, to make decisions concerning the children's education, and In this

regard, the Court finds that Andy I. Weiner has agreed for each child to remain at

the Kinkaid School through each child's graduation from such School, and that

there are other more specific provisions herein further delineating the obligation of


Weiner- Agreed Final Decree of Divorce
          .
          ·I




      Andy I. Weiner to pay for the Kinkaid School for the children.

                The Court finds that, in accordance with section 153.001 of the Texas

      Family Code, it is the public policy of Texas to assure that children will have

      frequent and continuing contact with parents who have shown the ability to act in

      the best interest of the child, to provide a safe, stable, and nonviolent environment

      for the child, and to encourage parents to share in the rights and duties of raising

      their child after the parents have separated or dissolved their marriage. IT IS

      ORDERED that, so long as the principal residence of Andy I Weiner Is in either

      Harris County, Texas or a county that is contiguous to Harris County, Texas, the

      primary residence of the children shall be in Harris County, Texas or a county that

     is contiguous to Harris County, Texas, and the parties shall not remove the

     children from such designated area for the purpose of changing the primary

     residence of the children until modified by further order of the court of continuing

     jurisdiction or by written agreement signed by the parties and filed with the court.

               IT IS ORDERED that the following custodial accounts now held by the

     parties for the parties' children are placed under the sole and exclusive control of
,.
~



'B   Katherine F. Weiner:
"'
               1.   Fidelity UTMA Acct Ending in #4270; and

               2.   Fidelity UTMA Acct Ending in #6843.

               Unless these documents have been previously executed, Andy I. Weiner Is



     Weiner - Agreed Final Decree of Divorce                                Page 9
•'        •'


      ORDERED to appear in the law offices of Randall B. Wilhite at 4265 San Felipe

      Street, Suite 1400, Houston, Texas 77027, at 2:00p.m. on March 30, 2012, and to

      execute, have acknowledged, and deliver to Katherine F. Weiner all documents

      necessary to effectuate Katherine F. Weiner's sole and exclusive control of the

      accounts.

                IT IS ORDERED that the following children's trusts are held in irrevocable

      trusts, which shall continue as written, and that each party will take any and all

      necessary steps to provide full co-trustee ownership and control of each such

      account including the placing of such accounts in a deposit and withdrawal

     agreement requiring both co-trustees to disburse funds; also known as an "and"

     account:

               1.    Fideli1y Trust Acct Ending in #8634 (David);

               2.    Fidelity Trust Acct Ending in #3958 (Daniel); and

               3.    Fidelity Trust Acct Ending In #1942 (Michael).

     Possession and Access

               1.    Modified Possession Order

                     The Court finds that the parties have entered into a Mediated
               Settlement Agreement providing for a non-expanded, non-standard
               possession order as more specifically herein provided.

                     IT IS ORDERED that each conservator shall comply with all terms
               and conditions of this Modified Possession Order. IT IS ORDERED that
               this Modified Possession Order is effective immediately and applies to all
               periods of possession occurring on and after the date the Court signs this



     Weiner- Agreed Final Decree or Divorce                         Page 10
     I




         Modified Possession Order. IT IS, THEREFORE, ORDERED:

                (a)     Definitions

                       1.     In this Modified Possession Order "school" means the
                primary or secondary school in which the child Is enrolled or, if the
                child is not enrolled In a primary or secondary school, the public
                school district in which the child primarily resides.

                       2.    In this Modified Possession Order "child" Includes each
                child, whether one or more, who is a subject of this suit while that cllild
                Is under the age of eighteen years and not otherwise emancipated.

                (b)    Mutual Agreement or Specified Terms for Possession

                      IT IS ORDERED that the conservators shall have possession of
               the child at times mutually agreed to in advance by the parties, and, in
               the absence of mutual agreement, it is ORDERED that the
               conservators shall have possession of the child under the specified
               terms set out in this Modified Possession Order.

               ©      Except as otherwise expressly provided in this Modified
               Possession Order, Andy I. Weiner shall have the right to possession
               of the child as follows:

                       1.     Weekends -

                             On weekends, beginning at 6:00p.m., on the first, third,
               and fifth Friday of each month and ending at 6:00 p.m. on the
               following Sunday, provided that upon 14 days' advance written notice
               of an out-of-town trip, Andy I. Weiner may pick up at 4 p.m. one time
               every 60 days.

                     2.    Thursdays - On Thursday of each week during the
               regular school term, beginning at 4:00 p.m. and ending at 8:00p.m.

                     3.     Spring Vacation in Even-Numbered Years - In
               even-numbered years, beginning at 5:00 p.m. o'n the day the child is
               dismissed from school for the school's spring vacation and ending at
               5:00p.m. on the day before school resumes after that vacation.


Weiner- Agreed Final Decree of Divorce                        Page 11
 '
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              4.     Extended Summer Possession by Andy I. Weiner-

             With Written Notice by April 1 - On or before April 1•t of each
      year, Andy I. Weiner shall designate one period of 14 consecutive
      days (which may be exercised In 2 one week periods of possession,
      separated by no less than 14 days), beginning no earlier than the day
      after the child's school is dismissed for the summer vacation and
      ending no later than 7 days before school resumes for the next school
      year, during which he shall have his summer periods of possession
      with the children. These periods of possession shall begin and end at
      6:00p.m. on each applicable day.

            Notwithstanding the Thursday periods of possession during the
     regular school term and the weekend periods of possession
     ORD.ERED for Andy I. Weiner, It Is expressly ORDERED that
     Katherine F. Weiner shall have a superior right of possession of the
     child as follows:

           1.     Spring Vacation in Odd-Numbered Years - In
     odd-numbered years, beginning at 5:00 p.m. on the day the child Is
     dismissed from school for the school's spring vacation and ending at
     6:00 p.m. on the day before school resumes after that vacation.

            2.    Summer Weekend Possession by Katherine F. Weiner-
     On or before April 15th of each year, Katherine F. Weiner shall
     designate 14 consecutive days, or at her election, two 7 day periods
     beginning no earlier than the day after the child's school Is dismissed
     for the summer vacation and ending no later than 7 days before
     school resumes for the next school year, during which she will have
     her summer perlod(s) of possession with the children, provided the
     dates do not conflict with Father's Day weekend or the summer
     periods designated by Andy I. Weiner. These periods of possession
     shall begin and end at6:00 p.m. on each applicable day.

     (d)    Holidays

          Notwithstanding the weekend and Thursday periods of
     possession of Andy I. Weiner, Katherine F. Weiner and Andy I.
     Weiner shall have the right to possession of the child as follows:


     Weiner· Agreed Final Decree of Divorce
(




          1.     Christmas Holidays In Even-Numbered Years - In
    even-numbered years, Andy I. Weiner shall have the right to
    possession of the child beginning at 6:00 p.m. on the day the child is
    dismissed from school for the Christmas school vacation and ending
    at noon on December 28, and Katherine F. Weiner shall have the right
    to possession of the child beginning at noon on December 28 and
    ending at 6:00 p.m. on the day before school resumes after that
    Christmas school vacation.                            ·

          2.     Christmas Holidays in Odd-Numbered Years - In
    odd-numbered years, Katherine F. Weiner shal.l have the right to
    possession of the child beginning at 6:00 p.m. on the day the child is
    dismissed from school for the Christmas school vacation and ending
    at noon on December 28, and Andy I. Weiner shall have the right to
    possession of the child beginning at noon on December 28 and
    ending at 6:00 p.m. on the day before school resumes after that
    Christmas school vacation.

          3.    Thanksgiving In Odd-Numbered Years                      In
    odd-numbered years, Andy I. Weiner shall have the right to
    possession of the child beginning at 6:00 p.m. on the day the child is
    dismissed from school for the Thanksgiving holiday and ending at
    6:00p.m. on the Sunday following Thanksgiving.

          4.    Thanksgiving In Even-Numbered Years                     In
    even-numbered years, Katherine F. Weiner shall have the right to
    possession of the child beginning at 6:00 p.m. on the day the child Is
    dismissed from school for the Thanksgiving hoiiday and ending at
    6:00p.m. on the Sunday following Thanksgiving.

           5.    Father's Day • Andy I. Weiner shall have the right to
    possession of the child each year, beginning at 6:00 p.m. on the
    Friday preceding Father's Day and ending at 6:00 p.m. on Father's
    Day, provided that if Andy I. Weiner is not otherwise entitled under this
    Modified Possession Order to present possession of the child, he
    shall pick up the child from Katherine F. Weiner's residence and
    return the child to that same place.
,.
•



      possession of the child each year, beginning at 6:00 p.m. on the
      Friday preceding Mother's Day and ending at 6:00 p.m. on Mother's
      Day, provided that if Katherine F. Weiner Is not otherwise entitled
      under this Modified Possession Order to present possession of the
      child, she shall pick up the child from Andy I. Weiner's residence and
      return the child to that same place.

      (e)    Undeslgnated Periods of Possession

             Katherine F. Weiner shall have the right of possession of the
      child at all other times not specifically designated In this Modified
      Possession Order for Andy I. Weiner.

     (f)     General Terms and Conditions

           Except as otherwise expressly provided In this Modified
     Possession Order, the terms and conditions of possession of the child
     are as follows:

           1.    Surrender of Child by Katherine F. Weiner- Katherine F.
     Weiner Is ORDERED to surrender the child to Andy I. Weiner at the
     beginning of each period of Andy I. Weiner's possession at the
     residence of Katherine F. Weiner.

            2.    Return of Child by Andy I. Weiner - Andy I. Weiner is
     ORDERED to return the child to the residence of Katherine F. Weiner
     at the end of each period of possession.

           3.     Surrender of Child by Andy I. Weiner - Andy I. Weiner is
     ORDERED to surrender the child to Katherine F. Weiner, if the child is
     In Andy I. Weiner's possession or subject to Andy I. Weiner's control,
     at the beginning of each period of Katherine F. Weiner's exclusive
     periods of possession, at the place designated in this Modified
     Possession Order.
           4.    Return of Child by Katherine F. Weiner- Katherine F.
     Weiner is ORDERED to return the child to Andy I. Weiner, If Andy I.
     Weiner is entitled to possession of the child, at the end of each of
     Katherine F. Weiner's exclusive periods of possession, at the place
     designated in this Modified Possession Order.



     Weiner- Agreed Final Decree of Divorce
'
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                       5.    Notwithstanding any other prov1s1on herein to the
               contrary, any child with a driver's license shall be permitted to drive
               himself to and from each period of possession and during each period
               of possession; however, any child without a driver's license (which at
               this lime includes Daniel Weiner and Michael Weiner) Is ORDERED
               to ride only with Andy I. Weiner.

                      6.     Personal Effects - Each conservator Is ORDERED to
               return with the child the personal effects that the child brought at the
               beginning of the period of possession.

                     7.    Designation of Competent Adult- Each conservator may
               designate any competent adult to pick up and return the child, as
               applicable. IT. IS ORDERED that a conservator or a designated
               competent adult be present when the child is picked up or returned.

                    8.    Inability to Exercise Possession - Each conservator is
              ORDERED to give notice to the person in possession of the child on
              each occasion that the conservator will be unable to exercise that
              conservator's right of possession for any specified period.

                     9.    Written Notice- Written notice shall be made to the other
              parent via e-mail correspondence to the other parent's e-mail
              address, including all notices from one parent to the other of any
              changes in a party's e-mail address. Each party is ORDERED to
              provide any change in the e-mail address designated by each such
              party as the one to be used for notification by the other party within 7
              days of a change thereof.

              This concludes the Modified Possession Order.

        2.    Provisions for Jewish Religious Holidays

              In addition to the holiday periods of possession set forth In the

        Modified Possession Order, Andy I. Weiner and Katherine F. Weiner shall

        share the Jewish holidays as set forth below:

              a.     Rosh      Hashanah        -   Even-Numbered   Years.     In   all



              Weiner- Agreed Final Decree of Divorce
r




     even-numbered years Andy I. Weiner shall have possession of the children

     for a period beginning at 5:00 p.m. on the night before the first day of Rosh

     Hashanah and ending at 9:00 p.m. on the same day; Katherine F. Weiner

     shall have possession of the children from 10:00 a.m. until 8:00 p.m. on the

     first day of Rosh Hashanah.

            b.      Rosh Hashanah- Odd-Numbered Years. In all odd-numbered

     years Katherine F. Weiner shall have possession of the children for a period

     beginning at 5:00 p.m. on the night before the first day of Rosh Hashanah

     and ending at 9:00 p.m. on the same day; Andy I. Weiner shall have

    possession of the children from 10:00 a.m. until 8;00 p.m. on the first day of

    Rosh Hashanah.

            c.     Yom Kippur - Odd-Numbered Years - In all odd-numbered

    years, Katherine F. Weiner shall have possession of the children for a period

    beginning at 5:00 p.m. on the night before the first day of Yom Kippur and

    ending at 9;00 p.m. on the same day; Andy I. Weiner shall have possession

    of the children from 10:00 a.m. until8:00 p.m. on the first day of Yom Kippur.

           d.      Yom Kippur - Even-Numbered Years - In all even-numbered

    years, Andy I. Weiner shall have possession of the children for a period

    beginning at 5:00 p.m. on the night before the first day of Yom Kippur and

    ending at 9:00 p.m. on the same day; Katherine F. Weiner shall have



    Weiner- Agreed Final Decree of Divorce                    Page 16
 possession of the children from 10:00 a.m. until 8:00p.m. on the first day of

 Yom Kippur.

         e.     Passover - Even-Numbered Years - In all even-numbered

 years, Andy I. Weiner shall have possession of the children for a period

 beginning at 5:00 p.m. on the night before the first full day of Passover and

 ending at 9:00 p.m. on the same day.

        f.      Passover- Odd-Numbered Years- In all odd-numbered years,

 Katherine F. Weiner shall have possession of the children for a period

 beginning at 5:00 p.m. on the night before the first full day of Passover and

ending at 9:00 p.m. on the same day.

3.      Duration

        The periods of possession ordered above apply to each child the

subject of this suit while that child Is under the age of eighteen years and not

otherwise emancipated.

4.      Noninterference with Possession

        IT IS ORDERED that neither conservator shall take possession .of the

children during the other conservator's period of possession unless there is

a prior written agreement signed by both conservators or In case of an

emergency.

5.     Termination of Orders



Weiner- Agreed Final Decree of Divorce                     Page 17
                    The provisions of this decree relating to conservatorship, possession,

             or access terminate on the remarriage of Katherine F. Weiner to Andy I.

            Weiner unless a nonparent or agency has been appointed conservator of

            the children under chapter 153 of the Texas Family Code.

      Child Support

            IT IS ORDERED that Andy I. Weiner is obligated to pay and shall pay to

     Katherine F. Weiner child support of two thousand two hundred fifty dollars
                                                                ·                  RPrll
     ($2,250) per month, with the first payment being due and payable on           MMeh    1,

     2012, and a like payment being due and payable on the 1st day of each month

     thereafter until the first month following the date of the earliest occurrence of one of

     the events specified below:

            1.'    any child reaches the age of eighteen years or graduates from high

     school, whichever occurs later, subject to the provisions for support beyond the

     age of eighteen years set out below;

           2.      any child marries;

           3.      any child dies;

           4.      the parent-child relationship Is terminated based on genetic testing

l    that excludes the obligor as the child's genetic father;

           5.     the child enlists in the armed forces of the United States and begins

~    active service as defined by section 101 of title 10 of the United States Code; or
.D


~
ii
!          Weiner- Agreed Final Decree of Divorce                      Page 18
        •        J




                      6.     '1nY child's disabilities are otherwise removed for general purposes.

                      Thereafter, Andy I. Weiner is ORDERED to pay to Katherine F. Weiner child

             support of one thousand eight hundred seventy-five dollars ($1,875) per month,

             due and payable on the 1st day of the first month immediately following the date of

             the earliest occurrence of one of the events specified above for another child and a

             like sum of one thousand eight hundred seventy-five dollars ($1 ,875) due and

             payable on the 1st day of each month thereafter until the next occurrence of one of

             the events specified above for another child.

                     Thereafter, Andy I. Weiner Is ORDERED to pay to Katherine F. Weiner child

            support of one thousand five hundred dollars ($1 ,500) per month, due and payable

             on the 1st day of the first month Immediately following the date of the earliest

            occurrence of one of the events specified above for another child and a like sum of

            one thousand five hundred dollars ($1 ,500) due and payable on the 1st day of

            each month thereafter until the next occurrence of one of the events specified

            above for another child.

                     If the child is eighteen years of age and has not graduated from high school,
  "
  ~         IT IS ORDERED that Andy I. Weiner's obligation to pay child support to Katherine
  ~




 l          F. Weiner shall not terminate but shall continue for as long as the child Is enrolled-

                     1.    under chapter 25 of the Texas Education Code In an accredited

  ii        secondary school in a program leading toward a high school diploma or under
l~
 s
~
'g
"'u'E
            Weiner- Agreed Final Decree of Divorce                      Page 19
                                                                                               ;.
 section 130.008 of the Education Code In courses for joint high school and junior

 college credit and is complying with the minimum attendance requirements of

 subchapter C of chapter 25 of the Education Code or

        2.      on a full-time basis in a private secondary school in a program leading

 toward a high school diploma and Is complying with the minimum attendance

requirements Imposed by that school.

        Withholding from Earnings

        IT IS ORDERED that any employer of Andy I. Weiner shall be ordered to

withhold from earnings for child support from the disposable earnings of Andy I.

Weiner for the support of David A. Weiner, Daniel S. Weiner and Michael H.

Weiner.

        IT IS FURTHER ORDERED that all amounts withheld from the disposable

earnings of Andy I. Weiner by the employer and paid in accordance with the order

to that employer shall constitute a credit against the child support obligation.

Payment of the full amount of child support ordered paid by this decree through the

means of withholding from earnings shall discharge the child support obligation.

If the amount withheld from earnings and credited against the child support

obligation Is less than 1oo percent of the amount ordered to be paid by this decree,

the balance due remains an obligation of Andy I. Weiner, and It Is hereby

ORDERED that Andy I. Weiner pay the balance due directly to the state



Weiner- Agreed Final Decree of Divorce                      Page 20
 disbursement unit specified below.

         On this date the Court authorized the issuance of an Order/Notice to

 Withhold Income for Child Support.

         Payment

         IT IS ORDERED that all payments shall be made through the state

 disbursement unit at Texas Child Support Disbursement Unit, P.O. Box 659791,

 San Antonio, Texas 78265·9791, and thereafter promptly remitted to Katherine F.

Weiner for the support of the children. IT IS ORDERED that each party shall pay,

when due, all fees charged to that party by the state disbursement unit and any

other agency statutorily authorized to charge a fee.

        Change of Employment

        IT IS FURTHER ORDERED that Andy I. Weiner shall notify this Court and

Katherine F. Weiner by U.S. certified mail, return receipt requested, of any change

of address and of any termination of employment. This notice shall be given no

later than seven days after the change of address or the termination of

employment. This notice or a subsequent notice shall also provide the current

address of Andy I. Weiner and the name and address of his current employer,

whenever that information becomes available.

       Clerk's Duties

       IT IS ORDERED that, on the request of a prosecuting attorney, the title IV·D



Weiner· Agreed Final Decree of Divorce                   Page 21
 agency, the friend of the Court, a domestic relations office, Katherine F. Weiner,

 Andy I. Weiner, or an attorney representing Katherine F. Weiner or Andy I. Weiner,

 the clerk of this Court shall cause a certified copy of the Order/Notice to Withhold

 Income for Child Support to be delivered to any employer.

         Suspension of Withholding from Earnings

        The Court finds that good cause exists that no order to withhold from

earnings for child support should be delivered to any employer of Andy I. Weiner

 as long as no delinquency or other violation of this child support order occurs and

 as long as the Office of the Attorney General Child Support Division is not

providing services to Katherine F. Weiner. For the purpose of this provision, a

delinquency has occurred if Andy I. Weiner has been In arrears for an amount due

for more than thirty days or the amount of the arrearages equals or is greater than

the amount due for a one-month period. If a delinquency or other violation occurs

or If the Office of the Attorney General Child Support Division begins providing

services to Katherine F. Weiner, the clerk shall deliver the order to withhold

earnings as provided above.

       ACCORDINGLY, IT IS ORDERED that, as long as no delinquency or other

violation of this child support order occurs and as long as the Office of the Attorney

General Child Support Division is not providing services to Katherine F. Weiner, all

payments shall be made through the state disbursement unit and thereafter



Weiner- Agreed Final Decree of Divorce                     Page 22
         promptly remitted to Katherine F. Weiner for the support of the children. If a

         delinquency or other violation occurs or If the Office of the Attorney General Child

         Support Division begins providing services to Katherine F. Weiner, all payments

         shall be made in accordance with the order to withhold earnings as provided

         above.

                Kinkaid School Tuition

                IT IS ORDERED that Andy I. Weiner shall pay, as child support, through

         graduation from high school, each child's tuition, required fees, required books,

        lunches at school and other fees associated with the children's attendance at the

        Kinkaid School, as billed directly by the school to Andy I. Weiner.

        Health Care

                1.      IT IS ORDERED that Katherine F. Weiner and Andy I. Weiner shall

        each provide medical support for each child as set out In this order as additional

        child support for as long as the Court may order Katherine F. Weiner and Andy I.

        Weiner to provide support for the child under sections 154.001 and 154.002 of the

        Texas Family Code. Beginning on the day Katherine F. Weiner and Andy I.
 ~
 '<>    Weiner's actual or potential obligation to support a child under sections 154.001
 ~1
  ~


 l      and 154.002 of the Family Code terminates, IT IS ORDERED that Katherine F.
    '
 ~
 ~      Weiner and Andy I. Weiner are discharged from the obligations set forth in this
 00
 ~
 on
 li
,£>
        medical support order with respect to that child, except for any failure by a parent
~
 ~
 ~
8       Weiner- Agreed Final Decree of Divorce                    Page23
1l
""·e
u
 ~
     ••



 to fully comply with those obligations before that date.

           2.    Definitions -

           "Health Insurance" means insurance coverage that provides basic

 health-care services,           Including   usual physician     services,   office   visits,

 hospitalization, and laboratory, X-ray, and emergency services, that may be

 provided through a health maintenance organization or other private or public

 organization, other than medical assistance under chapter 32 of the Texas Human

 Resources Code.

          "Reasonable cost" means the total cost of health insurance coverage for all

children for which Andy I. Weiner is responsible under a medical support order that

does not exceed 9 percent of Andy I. Weiner 's annual resources, as described by

section 154.062(b) of the Texas Family Code.

          "Reasonable and necessary health-care expenses not paid by Insurance

and incurred by or on behalf of a child" include, without limitation, any copayments

for office visits or prescription drugs, the yearly deductible, If any, and medical,

surgical, prescription drug, mental health-care services, dental, eye care,

ophthalmological, and orthodontic charges.         These reasonable and necessary

health-care expenses do not Include expenses for travel to and from the

health-care provider or for nonprescription medication.

          "Furnish" means:




Weiner- Agreed Final Decree of Divorce                         Page 24
    '.


                a.      to hand deliver the document by a person eighteen years of age

                        or older either to the recipient or to a person who is eighteen

                        years of age or older and permanently resides with the

                        recipient;

                b.     to deliver the document to the recipient by certified mail, return

                       receipt requested, to the recipient's last known mailing or

                       residence address; or

               c.      to deliver the document to the recipient at the recipient's last

                       known mailing or residence address using any person or entity

                       whose principal business is that of a courier or deliverer of

                       papers or documents either within or outside the United States.

         3.    Findings on Health Insurance Availability- Having considered the

cost, accessibility, and quality of health Insurance coverage available to the

parties, the Court finds:

         Health insurance Is available or is in effect for the children through Andy I.

Weiner's employment or membership in a union, trade association, or other

organization at a reasonable cost.

         IT IS FURTHER FOUND that the following orders regarding health-care

coverage are in the best interest of the children.

         4.    Provision of Health-Care Coverage -




Weiner- Agreed Final Decree of Divorce                       Page 25
    \
    '




         As additional child support, through four (4) months past high school

graduation for each child and for so long as child support is payable for a child,

Andy I. Weiner Is ORDERED to provide health Insurance for each such child with a

deductible of no more than $1 ,000.00 per year, per child, and if it is higher, as child

support, Andy I. Weiner Is ORDERED to pay 100% of all deductible amounts to a

point where such deductible amount reaches that level.           For example, if the

deductible for the children is $7,500, Andy I. Weiner shall pay 100% of the fist

$6,500 in uninsured health care expenses of the children.

        Beginning on the first day of the first month following the rendition of the

divorce, and pursuant to section 154. 183© of the Texas Family Code, IT IS

ORDERED that the reasonable and necessary uninsured medical expenses of the

children be paid as follows:

        a.   Andy I. Weiner shall be responsible for payment of 70% of each

child's deductible;

        b.   after the deductible has been met, Katherine F. Weiner shall pay for

30% and Andy I. Weiner shall pay for 70% of all uninsured health care expenses

for each child's health care not covered by the children's health Insurance policy.

        c.   Notwllhstanding the foregoing, any uninsured health care expenses

not applied toward the deductible shall be paid 30% by Katherine F. Weiner and

70% by Andy I. Weiner.




             Weiner· Agreed Final Decree of Divorce                      Page26   ~
    '.


         d.     Unless approved in advance by both parents, any party Incurring out

 of network expenses, except in the case Qi a medical emergency, shall pay 100%

 of such expense.

         Andy I. Weiner is ORDERED to continue to maintain health insurance for

 each child who is the subject of this suit that covers basic health-care services,

 including usual physician services, office visits, hospitalization, and laboratory,

X-ray, and emergency services.

         Andy I. Weiner is ORDERED to maintain such health insurance in full force

and effect on each child who is the subject of this suit as long as child support is

payable for that child.         Andy I. Weiner is ORDERED to convert any group

insurance to individual coverage or obtain other health Insurance for each child

within fifteen days of termination of his employment or other disqualification from

the group insurance. Andy I. Weiner is ORDERED to exercise any conversion

options or acquisition of new health insurance in such a manner that the resulting

insurance equals or exceeds that in effect immediately before the change.

         Andy I. Weiner Is ORDERED to furnish Katharine F. Weiner a true and

correct copy of the health insurance policy or certification and a schedule of

benefits within 10 days of the signing of this order. Andy I. Weiner is ORDERED

to furnish Katherine F. Weiner the insurance cards and any other forms necessary

for use of the insurance within 10 days of the signing of this order. Andy I. Weiner



Weiner- Agreed Final Decree of Divorce                    Page 27
     •


 is ORDERED to provide, within three days of receipt by him, to Katherine F.

 Weiner any insurance checks, other payments, or explanations of benefits relating

 to any medical expenses for the children that Katherine F. Weiner paid or Incurred.

         Pursuant to section 1504.051 of the Texas Insurance Code, IT IS

 ORDERED that if Andy I. Weiner is eligible for dependent health coverage but fails

 to apply to obtain coverage for the children, the insurer shall enroll the children on

 application of Katherine F. Weiner or others as authorized by law.

         The party who incurs a health·care expense on behalf of a child is

ORDERED to submit to the other party ail forms, receipts, bills, statements, and

explanations of benefits reflecting the uninsured portion of the health·care

expenses within thirty days after he or she receives them. The non incurring party

is ORDERED to pay his or her percentage of the uninsured portion of the

health·care expenses either by paying the health·care provider directly or by

reimbursing the Incurring party for any advance payment exceeding the incurring

party's percentage of the uninsured portion of the health·care expenses within

thirty days after the nonlncurrlng party receives the forms, receipts, bills,

statements, and explanations of benefits.

         These provisions apply to all unreimbursed health·care expenses of any

child who Is the subject of this suit that are Incurred while child support Is payable

for that child.




Weiner. Agreed Final Decree of Divorce                     Page28
    ·''


          5.    Secondary Coverage- IT IS ORDERED that if a party provides

 secondary health insurance coverage for the children, both parties shall cooperate

 fully with regard to the handling and filing of claims with the Insurance carrier

 providing the coverage in order to maximize the benefits available to the children

 and to ensure that the party who pays for health-care expenses for the children is

reimbursed for the payment from both carriers to the fullest extent possible.



          6.    Compliance with Insurance Company Requirements - Each party is

ORDERED to conform to all requirements imposed by the terms and conditions of

the policy of health Insurance covering the children in order to assure maximum

reimbursement or direct payment by the insurance company of the Incurred

health-care expense, Including but not limited to requirements for advance notice

to any carrier, second opinions, and the like. Each party Is ORDERED to attempt

to use "preferred providers," or services within the health maintenance

organization, if applicable; however, this provision shall not apply if emergency

care is required. Disallowance of the bill by a health Insurer shall not excuse the

obligation of either party to make payment; however, if a bill is disallowed or the

benefit reduced because of the failure of a party to follow insurance procedures or

requirements, IT IS ORDERED that the party failing to follow the insurance

procedures or requirements shall be wholly responsible for the increased portion



Weiner- Agreed Final Decree of Divorce                   Page29
/<•        I




       of that bill.

               IT IS FURTHER ORDERED that no surgical procedure, other than In an

       emergency or one covered by insurance, shall be performed on the child unless

       the parent consenting to surgery has first consulted with at least two medical

       doctors, both of whom state an opinion that the surgery Is medically necessary. IT.

       IS FURTHER ORDERED that a parent who falls to obtain the required medical

      opinions before consent to surgery on the child shall be wholly responsible for all

      medical and hospital expenses Incurred In connection therewith and not covered

      by insurance.

               7.      Claims- Except as provided in this paragraph, the party who is not

      carrying the health Insurance policy covering the children Is ORDERED to furnish

      to the party carrying the policy, within thirty days of receiving them, any and all

      forms, receipts, bills, and statements reflecting the health-care expenses the party

      not carrying the policy Incurs on behalf of the children. In accordance with section

      1204.251 and 1504.055(a) of the Texas Insurance Code, IT IS ORDERED that the

      party who is not carrying the health insurance policy covering the children, at that

      party's option , may file any claims for health-care expenses directly with the

      insurance carrier with and from whom coverage is provided for the benefit of the

      children and receive payments directly from the insurance company. Further, for

      the sole purpose of section 1204.251 of the Texas Insurance Code, Katherine F.



      Weiner- Agreed Final Decree of Divorce                    Page 30
1',      ... '




       Weiner is designated the managing conservator or possessory conservator of the

       children.

                  The party who is carrying the health insurance policy covering the children Is

       ORDERED to submit all forms required by the insurance company for payment or

       reimbursement of health-care expenses incurred by either party on behalf of a

       child to the insurance carrier within fifteen days of that party's receiving any form,

       receipt, bill, or statement reflecting the expenses.

                 B.     Constructive Trust for Payments Received- IT IS ORDERED that any

       insurance payments received by a party from the health insurance carrier as

      ·reimbursement for health-care expenses Incurred by or on behalf of a child shall

      belong to the party who paid those expenses. IT IS FURTHER ORDERED that

      the party receiving the insurance payments is designated a constructive trustee to

      receive any insurance checks or payments for health-care expenses paid by the

      other party, and the party carrying the policy shall endorse and forward the checks

      or payments, along with any explanation of benefits received, to the other party

      within three days of receiving them.

                 9.    WARNING- A PARENT ORDERED TO PROVIDE HEALTH

      INSURANCE OR TO PAY THE OTHER PARENT ADDITIONAL CHILD

      SUPPORT FOR THE COST OF HEALTH INSURANCE WHO FAILS TO DO SO

      IS LIABLE FOR NECESSARY MEDICAL EXPENSES OF THE CHILDREN,



      Weiner- Agreed Final Decree of Divorce                        Page 31
           WITHOUT REGARD TO WHETHER THE EXPENSES WOULD HAVE BEEN

           PAID IF HEALTH INSURANCE HAD BEEN PROVIDED, AND FOR THE COST

           OF HEALTH INSURANCE PREMIUMS OR CONTRIBUTIONS, IF ANY, PAID ON

           BEHALF OF THE CHILDREN.

            Miscellaneous Child Support Provisions

           Support as Obligation of Estate

                  IT IS ORDERED that the provisions for child support In this decree shall be

           an obligation of the estate of Andy I. Weiner and shall not terminate on the death of

          Andy I. Weiner.        Payments received for the benefit of the children, including

          payments from the Social Security Administration, Department of Veterans Affairs

          or other governmental agency or life Insurance proceeds, annuity payments, trust

          distributions, or retirement survivor benefits, shall be a credit against this

          obligation. Any remaining balance of the child support is an obligation of Andy I.

          Weiner's estate.

          Termination of Orders on Remarriage of Parties but Not on Death of Obligee

                  The provisions of this decree relating to current child support terminate on
 "
 .....
 :;       the remarriage of Katherine F. Weiner to Andy I. Weiner unless a nonparent or
  M


 l.,.,'   agency has been appointed conservator of the children under chapter 153 of the
 "'~      Texas Family Code. An obligation to pay child support under this decree does not
 "',,.,
 ~




  ii      terminate on the death of Katherine F. Weiner but continues as an obligation to
 'S
 z
 il
 §
  0

8         Weiner- Agreed Final Decree of Divorce                    Page 32
]
"'8'€
I I      ,,J..




       David A. Weiner, Daniel S. Weiner and Michael H. Weiner.

       Information Regarding Parties

                 The information required for each party by section 105.006(a) of the Texas

       Family Code is as follows:

                 Name:                                       Katherine F. Weiner
                 Social Security number:       xxx-xx-x324
                 Driver's license number:                              xxxxx616
                                                                       Issuing     state:
                                                                       Texas
                 Current residence address:    8719 Stablecrest, Houston, TX 77024
                 Mailing address:                   8719 Stablecrest, Houston, TX 77024
                 Home telephone number:        832-725-4340
                 Name of employer:             N/A




      Weiner- Agreed Final Decree of Divorce                      Page 33
         Address of employment:          N/A
         Work telephone number:          N/A

        Name:                                          Andy I. Weiner
        Social Security number:          xxx-xx-x888
        Driver's license number                                  xxxxx486
                                                                  Issuing     state:
                                                                 Texas
        Current residence address:       1200 Post Oak Blvd., Apt. 907, Houston, TX
                                         77056
        Mailing address:                             1200 Post Oak Blvd., Apt. 907,
                                         Houston, TX 77056
        Home telephone number:           832 816 4666
        Name of employer:                Weiner Development
        Address of employment:           520 North Post Oak Blvd., Houston, Texas
        Work telephone number:           (713) 623-0188

EACH PERSON WHO IS A PARTY TO THIS ORDER IS ORDERED TO NOTIFY

EACH OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY OF

ANY CHANGE IN THE PARTY'S CURRENT RESIDENCE ADDRESS, MAILING

ADDRESS, HOME TELEPHONE NUMBER, NAME OF EMPLOYER, ADDRESS

OF EMPLOYMENT, DRIVER'S LICENSE NUMBER, AND WORK TELEPHONE

NUMBER. THE PARTY IS ORDERED TO GIVE NOTICE OF AN INTENDED

CHANGE IN ANY OF THE REQUIRED INFORMATION TO EACH OTHER

PARTY, THE COURT, AND THE STATE CASE REGISTRY ON OR BEFORE

THE 60TH DAY BEFORE THE INTENDED CHANGE. IF THE PARTY DOES

NOT KNOW OR COULD NOT HAVE KNOWN OF THE CHANGE IN SUFFICIENT

TIME TO PROVIDE 60-DAY NOTICE, THE PARTY IS ORDERED TO GIVE

NOTICE OF THE CHANGE ON OR BEFORE THE FIFTH DAY AFTER THE


Weiner- Agreed Final Decree of Divorce                     Page34
                                                                                   I
 DATE THAT THE PARTY KNOWS OF THE CHANGE.

 THE DUTY TO FURNISH THIS INFORMATION TO EACH OTHER PARTY, THE

 COURT, AND THE STATE CASE REGISTRY CONTINUES AS LONG AS ANY

 PERSON, BY VIRTUE OF THIS ORDER, IS UNDER AN OBLIGATION TO PAY

 CHILD SUPPORT OR ENTITLED TO POSSESSION OF OR ACCESS TO A

CHILD.

 FAILURE BY A PARTY TO OBEY THE ORDER OF rHIS COURT TO PROVIDE

EACH OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY WITH

THE CHANGE IN THE REQUIRED INFORMATION MAY RESULT IN FURTHER

LITIGATION TO ENFORCE THE ORDER, INCLUDING CONTEMPT OF COURT.

A FINDING OF CONTEMPT MAY BE PUNISHED BY CONFINEMENT IN JAIL

FOR UP TO SIX MONTHS, A FINE OF UP TO $500 FOR EACH VIOLATION,

AND A MONEY JUDGMENT FOR PAYMENT OF ATTORNEY'S FEES AND

COURT COSTS.

Notice shall be given to the other party by delivering a copy of the notice to the

party by e-mail correspondence to the party's e-mail address. Notice shall be given

to the Court by delivering a copy of the notice either in person to the clerk of this

Court or by registered or certified mail addressed to the clerk at 1115 Congress,

Houston, Texas 77002. Notice shall be given to the state case registry by mailing a

copy of the notice to State Case Registry, Contract Services Section, MC046S,



Weiner- Agreed Final Decree of Divorce                    Page 35
'

     P.O. Box 12017, Austin, Texas 78711-2017.

     NOTICE TO ANY PEACE OFFICER OF THE STATE OF TEXAS: YOU MAY

     USE REASONABLE EFFORTS TO ENFORCE THE TERMS OP CHILD

     CUSTODY SPECIFIED IN THIS ORDER. A PEACE OFFICER WHO RELIES

     ON THE TERMS OF A COURT ORDER AND THE OFFICER'S AGENCY ARE

     ENTITLED TO THE APPLICABLE IMMUNITY AGAINST ANY CLAIM, CIVIL OR

    OTHERWISE,           REGARDING           THE   OFFICER'S   GOOD      FAITH   ACTS

     PERFORMED IN THE SCOPE OF THE OFFICER'S DUTIES IN ENFORCING

    THE TERMS OF THE ORDER THAT RELATE TO CHILD CUSTODY. ANY

    PERSON WHO KNOWINGLY PRESENTS FOR ENFORCEMENT AN ORDER

    THAT IS INVALID OR NO LONGER IN EFFECT COMMITS AN OFFENSE THAT

    MAY BE PUNISHABLE BY CONFINEMENT IN JAIL FOR AS LONG AS TWO

    YEARS AND A FINE OF AS MUCH AS $10,000.

    WARNINGS TO PARTIES: FAILURE TO OBEY A COURT ORDER FOR CHILD

    SUPPORT OR FOR POSSESSION OF OR ACCESS TO A CHILD MAY RESULT

    IN    FURTHER LITIGATION TO ENFORCE THE                      ORDER,    INCLUDING

    CONTEMPT OF COURT. A FINDING OF CONTEMPT MAY BE PUNISHED BY

    CONFINEMENT IN JAIL FOR UP TO SIX MONTHS, A FINE OF UP TO $500 FOR

    EACH VIOLATION, AND A MONEY JUDGMENT FOR PAYMENT OF

    ATTORNEY'S FEES AND COURT COSTS.



    Weiner- Agreed Final Decree of Divorce                     Page 36
'-1      ,~,I




       FAILURE OF A PARTY TO MAKE A CHILD SUPPORT PAYMENT TO THE

       PLACE AND IN THE MANNER REQUIRED BY A COURT ORDER MAY RESULT

       IN THE PARTY'S NOT RECEIVING CREDIT FOR MAKING THE PAYMENT.

       FAILURE OF A PARTY TO PAY CHILD SUPPORT DOES NOT JUSTIFY

       DENYING THAT PARTY COURT-ORDERED POSSESSION OF OR ACCESS

       TO A CHILD.         REFUSAL BY A PARTY TO ALLOW POSSESSION OF OR

       ACCESS        TO     A    CHILD         DOES   NOT   JUSTIFY   FAILURE   TO   PAY

      COURT-ORDERED CHILD SUPPORT TO THAT PARTY.

       Change of Petitioner's Name

                IT IS ORDERED AND DECREED that Katherine F. Weiner's name is

      changed to Katherine Rose Warren.

      Court Costs

                IT IS ORDERED AND DECREED that costs of court are to be borne by the

      party who incurred them.

      Resolution of Temporary Orders

                IT IS ORDERED AND DECREED that Petitioner and Respondent are

      discharged from all further liabilities and obligations imposed by the temporary

      order of this Court rendered on August 24, 2011, except as otherwise stated herein

      with regard to provisions for sale of the home.

      Discharge from Discovery Retention Requirement



      Weiner· Agreed Final Decree of Divorce                      Page 37
....



              IT IS ORDERED AND DECREED that the parties and their respective

       attorneys are discharged from the requirement of keeping and storing the

       documents produced In this case in accordance with rule 191.4(d) of the Texas

       Rules of Civil Procedure.

        Decree Acknowledgment

              Petitioner, Katherine F. Weiner, and Respondent, Andy I. Weiner, each

       acknowledge that before signing this Final Decree of Divorce they have read this

       Final Decree of Divorce fully and completely, have had the opportunity to ask any

       questions regarding the same, and fully understand that the contents of this Final

       Decree of Divorce constitute a full and complete resolution of this case. Petitioner

       and Respondent acknowledge that they have voluntarily affixed their signatures to

       this Final Decree of Divorce, believing this agreement to be a just and right division

       of the marital debt and assets, and state that they have not signed by virtue of any

       coercion, any duress, or any agreement other than those specifically set forth in

       this Final Decree of Divorce.

       Indemnification

             Each party represents and warrants that he or she has not incurred any

       outstanding debt, obligation, or other liability on which the other party is or may be

       liable, other than those described in this decree. Each party agrees and IT IS

       ORDERED that If any claim, action, or proceeding Is hereafter Initiated seeking to



   Weiner- Agreed Final Decree of Divorce                         Page 38
 hold the party not assuming a debt, an obligation, a liability, an act, or an omission

 of the other party liable for such debt, obligation, liability, act or omission of the

 other party, that other party will, at his or her sole expense, defend the party not

 assuming the debt, obligation, liability, act, or omission of the other party against

 any such claim or demand, whether or not well founded, and will indemnify the

 party not assuming the debt, obligation, liability, act, or omission of the other party

 and hold him or her harmless from all damages resulting from the claim or

 demand.

Damages, as used in this provision, includes any reasonable loss, cost, expense,

penalty, and other damage, including without limitation attorney's fees and other

costs and expenses reasonably and necessarily incurred in enforcing this

indemnity.

        IT IS ORDERED that the Indemnifying party will reimburse the indemnified

party, on demand, for any payment made by the indemnified party at any lime after

the entry of the divorce decree to satisfy any judgment of any court of competent

jurisdiction or in accordance with a bona fide compromise or settlement of claims,

demands, or actions for any damages to which this indemnity relates.

       The parties agree and IT IS ORDERED that each party will give the other

party prompt written notice of any litigation threatened or instituted against either

party that might constitute the basis of a claim for Indemnity under this decree.



Weiner- Agreed Final Decree of Divorce                      Page 39
 Clarifying Orders

         Without affecting the finality of this Final Decree of Divorce, this Court

 expressly reserves the right to make orders necessary to clarify and enforce this

 decree.

 Relief Not Granted

         IT IS ORDERED AND DECREED that all relief requested In this case and

 not expressly granted Is denied. This is a final judgment, for which let execution

 and all writs and processes necessary to enforce this judgment Issue.        This




Weiner- Agreed Final Decree of Divorce                  Page40




                                                                                      i
..    '   ........


          APPROVED AS TO FORM ONLY:

      FULLENWEIDER WILHITE
      4265 San Felipe Street
      Suite 1400
      Houston, Texas 77027
      Tel: (713) 624-4100
      Fax: (713) 624-4141    1




      By~~    Ra1ldaiiB:W(hlt6
              Attorney for Katherine F. Weiner
              State Bar No. 21476400


     JENKINS KAMIN, LLP
     Two Greenway Plaza, Suite 600
     Houston, Texas 77046
     713-600-5500 Telephone
     713-600-     Telefa


     By:--:-----co~~z.;_.L;~---
        Joan . Jenkln"'<-__..-
        Attorney for Andy I. Weiner
        State Bar Number 10621900


     APPROVED AND CONSENTED TO
     AS TO BOTH FORM AND SUBSTANCE:




     Weiner- Agreed Final Decree of Divorce      Page 41
                                     No. ______________

 INRE:                                           §            IN THE PROBATE COURT
                                                 §
                                                 §            NO. ______________
DAVID ABRAHAM WEINER                             §
1994TRUST                                        §            HARRIS COUNTY, TEXAS


                         AFFIDAVIT OF KATHERINE F. WARREN

        Before me, the undersigned notary, on this day personally appeared KATHERINE F.

WARREN, the affiant, whose identity is known to me. After I administered an oath, affiant

testified as follows:

    1. My name is Katherine F. Warren. I am over eighteen years of age, of sonnd mind, and

       capable of making tllis affidavit. The facts stated in this affidavit are within my personal

       knowledge and are true and correct.

   2. On December 13, 1994, Andy I. Weiner and I created the DAVID ABRAHAM WEINER

       1994 TRUST (the "Trust") for the benefit of our son, David W. Warren, formerly known

       as David A. Weiner. Andy I. Weiner and I are the trustors and co-ttustees of the Trust.

  3. The purpose of the Trust is to provide for the best interests of our son, David. A primary

       purpose of the Trust is to fund his educational costs. I believe that it is in David's best

      interest to receive a quality education.

  4. David is enrolled as a freshman at Rice University in Houston, Texas.             He began

      attending classes in August 2013.

  5. Andy I. Weiner and I were granted a divorce on March 29, 2012. As part of the divorce

      decree, the trust was to continue as provided under the tmst agreement. Under the trust

      agreement, Andy I. Weiner and I are required to act jointly as co-trustees.


                                                 1
                                      txh;hrf             ~
  6. Although David is the primary beneficiary of the Trust, he applied for fmancial aid with

      Rice University prior to the start of the Fall 2013 semester. David was denied financial

     aid because of the Trust. The financial aid department of Rice University explained that

     where students are the beneficiaries of trusts like the DAVID ABRAHAM WEINER

     1994 TRUST, that the school assumes that the trust funds are intended for the payment of

     college expenses.

 7. David received a tuition bill from Rice University in July 2013. I wrote a check from the

     Trust's Fidelity account for $20,000 or around August 1, 2013. The check was returned

     to Rice University unpaid because Andy I. Weiner requested that Fidelity not honor the

     check.

8. After the check was returned to Rice University unpaid, David received a letter from the

    university advising him that his tuition payment was overdue. I requested that Fidelity

    wire $20,000 to David, with which he paid his tuition. It took approximately six weeks

    for the tuition payment to be credited to David's account with Rice University.

9. I believe that it is detrimental to the best interests of David for Andy I. Weiner and I to

    continue acting as co-trustees of the Trust. Our disagreements regarding distributions of

    David's behalf could seriously inhibit his ability to receive a wonderful education.

10. David is an intelligent adult and is capable of using the Trust assets for his best interests.

   I believe that David has shown maturity beyond most other college students his age. It

   would be in his best interests to be given the Trust assets for his college tuition, rather

   than to face the uncertainty inherent in the current situation.
                                                                        _ _ 2013.
Sworn to and subscribed before me by Katherine F. Warren on   CJ •3 0



                      ANGIE K BYRNES
                    My commission Expires
                     seplember 16. 2015
                                                                          PI~OBATE COURT.4
                                           No. 425,576
                                                                                   ' .           r--'
INRE:                                         §              IN THE PROBA,rE'¢,ouRt,                           •)j
                                              §                                                     :;,::        [<'
                                                                                                                 n
                                              §              N0.4                                                   r~,



DANIEL STEPHEN WEINER                         §                                    -:::-~   nt                      ",>
                                                                                                                       ~~\

1996TRUST                                     §              HARRIS COUNTY,'TEXAS                       ~              c-
                                                                                                            ~-
                                                                                      .,.,. '               ·(it\

   FIRST AMENDED ORIGINAL PETITION FOR MODIFICATION OF TRUST                                        and 0
     RESPONSE TO PLEA IN ABATEMENT AND PLEA TO THE JURISDICTION


TO THE HONORABLE JUDGE OF SAID COURT:

       NOW COMES Katherine F. Warren as next friend of Daniel S. Weiner, a mmor,

Petitioner herein, and files this First Amended Original Petition for Modification of Trust for the

DANIEL STEPHEN WEINER 1996 TRUST, a true and correct copy of which is attached hereto

as "Exhibit A" and is incorporated for all purposes. Petitioner respectfully shows the Court as

follows:

                                            PARTIES

   I. Katherine F. Warren appears as next fi'iend of Daniel S. Weiner pursuant to Rule 44 of

       the Texas Rules of Civil Procedure and files this action on his behalf in his capacity as

       beneficiary of the DANIEL STEPHEN WEINER 1996 TRUST ("Trust"). Daniel S.

       Weiner, a minor, was born on March 11, 1996. He will be an adult on March II, 2014.

       No legal guardian or attorney ad litem has been appointed for DanielS. Weiner.

   2. Daniel S. Weiner ("Primary Beneficiary") has an interest in tltis proceeding under Texas

       Trust Code § 111.004(7). He is also a necessary pmiy under Texas Trust Code §

       115.011(2) because he is the primary beneficiary named in the Trust.

   3. Katherine F. Warren has the exclusive right to represent Daniel S. Weiner in legal action

       and to make decisions of substantial legal significance concerning him pursuant to the
                                                                                                        EXHIBIT
                                                                                                                             exhibitsticker.com




                                                  I

                                                                                                             TAB H
    Agreed Final Decree of Divorce ("Divorce Decree"), Cause No. 2011-01040 in the

    District Court of the 309'" Judicial District in Hanis County, Texas, which is attached as

    "Exhibit B" and incorporated for all pmposes. Texas Trust Code§ 115.013(c)(3) petmits

    a parent to represent her child as guardian ad litem or next friend if there is no conflict of

    interest and no guardian of the estate or guardian ad litem has been appointed. Ms.

    Wan·en's interests do not conflict with those of DanielS. Weiner.

4. Katherine F. Wanen is an individual acting as tmstee of the Tmst. Ms. WmTen is joined

    as a Respondent herein because she has an interest in the proceeding under Texas Tmst

    Code § 111.004(7) and is a necessary party pursuant to Texas Tmst Code §

    115.011(b)(4).   She cmTently resides at 1226 Muirfield Place, Houston, Hanis County,

   Texas 77055.

5. Andy I. Weiner is an individual acting as trustee of the Tmst. Mr. Weiner is joined as a

   Respondent herein because he has an interest in this proceeding under Texas Tmst Code

   § 111.004(7) and is a necessary party pursuant to Texas Trust Code§ 115.011(b)(4). Mr.

   Weiner currently resides at 1200 Post Oak Blvd., Apmiment 907, Houston, Texas 77056.

6. The situs of the Trust is Houston, Hanis County, Texas.


                                     JURISDICTION

7. The subject matter of this dispute involves the management and modification of the Trust

   estate of the DANIEL STEPHEN WEINER 1996 TRUST. This Court has jurisdiction

   over this subject matter pursuant to Texas Trust Code§ 115.001(d)(1) and Texas Probate

   Code§ 4G.




                                             2
                           RESPONSE TO PLEA IN ABATEMENT

8. Respondent Andy I. Weiner filed a Plea in Abatement in this action alleging that he had

    commenced an earlier suit on the same subject matter involving the same patties in the

    3091h Judicial Disllict. In order to succeed on his Plea in Abatement, Mr. Weiner must

   show that I) he commenced suit first, 2) the suit is still pending, 3) the same parties are

   involved, and 4) the controversies are the same. In re Sims, 88 S.W.3d 301, 303 (Tex.

   App. - San Antonio 2002, Wiit granted).        The undisputed record shows that the Mr.

   Weiner cannot meet the last two requirements. On their face, Mr. Weiner's pleadings

   show that the parties are not the same in the District Comt and the Probate Court. Daniel

   S. Weiner is not a party in the District Court action. Daniel S. Weiner would be a

   necessary party to a suit involving the DANIEL STEPHEN WEINER 1996 TRUST

   because he is a named beneficiary. Tex. Trust Code§ 115.01l(b)(2). A lack of necessary

   parties deprives the first court of dominant jurisdiction. Mission Res. v. Garza Energy

   Trust, 268 S.W.3d 301, 328 (Tex. App. Corpus Christi 2005). A plaintiff who is not a

   pmty to a plior suit is fi·ee to choose his forum. Wyatt v. Shaw Plumbing Co., 760 S.W.2d

   245, 248 (Tex. 1988). A defendant, however, is not at libetty to decline to do battle in the

   forum chosen by the plaintiff. Id. Accordingly, Mr. Weiner's Plea in Abatement should

   be denied.

9. Nor can Mr. Weiner show that he had a prior case involving the same subject matter

   when Petitioner filed his case in the Probate Comt. Two controversies involve the same

   subject matter when the issues presented in each case are "inherently intenelated" - i.e.

   one controversy cannot be resolved without resolving the other. In re Puig, 351 S.W.3d

   301, 305 (Tex. 2011); Wyatt, 760 S.W.2d at 247. That is not the case here. The pleadings



                                            3
          on their face reveal that the subject matters in the two actions are wholly dissimilar. The

          alienation issues can be resolved without modifying the Tmst and the Trust can be

          modified without resolving the alienation issues.

     10. The hemi of Mr. Weiner's Petition to Modify Parent-Child Relationship ("SAPCR" 1)

         filed on August 14, 2013 is a claim of alienation from his children allegedly caused by

         Katherine F. Wan·en, his ex-wife. See Suppotiing Affidavit to Exhibit A to Mr. Weiner's

         Plea in Abatement. Mr. Weiner's SAPCR contained a litany of grievances and relief

         requested in order to stop the alienation. Among them was a request for the exclusive

         right to consent to the children's psychiattic and psychological treatment, to manage their

         estates, 2 to represent them in legal action, and to exercise a fully expanded Standard

         Possession Order. Mr. Weiner also requested temporary orders for psychological

         evaluation of the whole family, the appointment of an Amicus Attorney, mandatory

         alternative dispute resolution ("ADR"), access to the children's health care records, and

         enforcement of the Divorce Decree's order that the Fidelity Trust accounts be changed to

         "and" accounts. He also requested a temporary restraining order to prevent Ms. Wan·en

         from withdrawing the children from school where they are presently enrolled and making

         disparaging remarks about him in front of the children. And finally, he requested a

         permanent injunction to prevent Ms. Wan·en from changing the names of the children.

         There was no mention of Trust management or modification and hence no inherent

         intenelation of the initial subject matter of the two suits. In re Puig, 351 S.W.3d at 305;

         Wyatt, 760 S.W.2d at 247.

1
  Suit Affecting the Parent-Child Relationship ("SAPCR") means a suit filed in which the appointment of a
managing conservator or a possessory conservator, access to or support of a child, or establishment or termination of
the parent-child relationship is requested. Tex. Family Code§ 101.032.
2
  The children have a Unifonn Transfer to Minors Account ("UTMA"), which Ms. WaiTen was awarded sole and
exclusive control of on page 9 of the original Divorce Decree dated March 29, 2012.

                                                         4
II. It was only after Petitioner filed suit to modify the Trust on September 30, 2013 that Mr.

   Weiner amended hiss pleadings in the District Court on October 18, 2013 to request "the

   exclusive right to manage the existing ttusts of the children." See page 2 of Exhibit B to

   Mr. Weiner's Plea in Abatement. This addition is the only change that was made in the

   amended pleadings. See Mr. Weiner's Exhibits A and B to his Plea in Abatement. In

   essence, Mr. Weiner amended his pleading to set up a new subject matter in order to

   obtain dominant jurisdiction in the District Court. But this is directly contrary to the

   Texas Supreme Court's ruling in State of Texas v. Boyd, in which the Court held that a

   party cannot obtain dominant jurisdiction by amending its pleadings in the first court to

   set up a subject matter similar to a different case in a second court involving the same

  parties. State of Texas v. Boyd, 136 S.W.2d II 07 (Tex. 1940). The plaintiff in Boyd

   amended its pleading in the Ha!Tis County District Court to set up a similar subject matter

  as another suit involving the same defendant in Travis County. The plaintiff then filed a

  plea in abatement alleging that it had a prior suit on the same subject matter pending in

  Han-is County. The Court held that such action did not bestow dominant jurisdiction on

  the first case because they were wholly dissimilar prior to the amendment. Id. These

  facts are identical to the case at bar in which Mr. Weiner amended his parent-child

  alienation case against his ex-wife to add a new subject matter- management of the Trust

  estate - and then alleged that he had a prior suit pending on the same subject matter as

  Petitioner's case in the Probate Court. But the law is clear that amending a pleading to

  set up a subject matter similar to a second action does not give the first action dominant

  jurisdiction where the subject matter of the two cases were "wholly dissimilar" prior to

  the amendment. Id.



                                           5
                        RESPONSE TO PLEA TO THE JURISDICTION

12. Mr. Weiner also filed a Plea to the Jurisdiction on October 23, 2013 alleging that the

    District Court has continuing exclusive jurisdiction over matters pertaining to the Trust

    estate.   But that asse1iion is directly contrary to the statute. Texas Family Code §

    155.001(a) confers exclusive continuing exclusive jurisdiction over only the matters

   provided for in Title 5 of the Texas Family Code. These include "orders regarding

   managing conservatorship, possessory conservatorship, possession of and access to the

   child, and support of the child." Tex. Family Code§ 155.003(a). The limits of the District

   Comi's continuing exclusive jurisdiction are not boundless. They include only those

   matters expressly enumerated in Texas Family Code § 155.003(a), which are not

   involved in Petitioner's action to modifY the Trust. Accordingly, this Court should deny

   Mr. Weiner's Plea to the Jurisdiction.

13. A hearing is scheduled on the Plea in Abatement and the Plea to the Jurisdiction for

   November II, 2013 at I :30 p.m. in this Court.

                                        VENUE

14. Venue of this proceeding is proper in this Comi pursuant to Texas Trust Code §

   115.002(b-2) and Texas Probate Code§ 8.

                                        FACTS

15. The Trust is an inter vivos minor's trust created under Internal Revenue Code§ 2503(c)

   by Ms. Wan·en and Mr. Weiner by agreement dated March 20, 1996 for the benefit of

   their son, DanielS. Weiner, the Primary Beneficimy and Petitioner.




                                            6
16. At the present time, Daniel S. Weiner is the only beneficiary of the Trust. Daniel S.

    Weiner is a high school senior and straight-A student at The Kincaid School in Houston,

    Texas. He is completing applications to attend college in the Fall of 2014 and is

    concemed about being able to depend on distributions fi·om the Tmst to help pay for his

    college.

17. The Tmst estate consists of marketable securities and cash in the approximate value of

    $113,000 as of August 31, 2013.

18. The Trust is authorized under Section A-1 to make disttibutions to the Ptimary

   Beneficiary as follows:

           "The income of the trust may be accumulated and retained, in

           whole or in pati, or the tmstee may distribute to Daniel, fi·om time

           to time, so much or all of the bust estate as, in the trustee's

           discretion, is in Daniel's best interests."

19. Pursuant to Section A-2 of the Trust, the Ptimary Beneficiary may withdraw all or part of

   the Trust estate within 60 days after becoming age 21, and may thereby te1minate the

   trust as to the pati withdrawn.        If the Primaty Beneficiary does not exercise his

   withdrawal tight, the Trust continues until the Ptimary Beneficiary becomes age 30.

20. Section A-2 of the Trust provides that in the event the Primary Beneficiary should die

   before the Trust tenninates, then all assets remaining in the Trust shall be held or

   distributed by the Trustee for the benefit of those in favor of whom the Primary

   Beneficiary exercises a power of appointment, or otherwise in the following order:(!) to

   the Ptimary Beneficiary's descendants, (2) if none of the descendants are then living, to




                                              7
    the trustors' descendants, (3) if none of the trustors' descendants are then living, to the

    trustors' heirs.

21. The initial and current bus tees of the Trust are Ms. Warren and Mr. Weiner. In the event

    that both Mr. Weiner and Ms. Warren cease to act as tmstee, Bayle Weiner Drubel, Mr.

    Weiner's sister, who is believed to live in Dmtmouth, Massachusetts, is appointed

    successor tmstee under Section D-l(a) of the Trust.

22. The tmstees were granted a divorce on March 29, 2012. The Divorce Decree ordered

   that:

            "the following children's trusts are held in ilTevocable tmsts,

            which shall continue as written, and that each party will take any

            and all necessary steps to provide full co-trustee ownership and

            control of each such account including the placing of such

           accounts in a deposit and withdrawal agreement requiling both co-

           trustees to disburse funds; also known as an "and" account:

            I. Fidelity Trust Acct Ending in #8634 (David)

           2. Fidelity Trust Acct Ending in #3958 (Daniel)

           3. Fidelity Trust Acct Ending in #1942 (Michael)."

   See Exhibit B, page I 0.

23. The Texas Trust Code provides that on the petition of a beneficiary, a Court may order

   that the trustee be changed or that the trust be otherwise modified if modification of

   administrative, non-dispositive tenns of the trust is necessary or appropriate to prevent

   waste or avoid impainnent of the Trust's administration. Tex. Trust Code §

   112.054(a)(3).



                                            8
24. Petitioner believes that the inability of the trustees to agree on management of the Trust

    has impaired the Tmst's administration. Modification of the Tmst is necessary to prevent

    the tmstees' personal issues fi·om hindering their ability to effectively administer the

    Trust.

                                  RELIEF REQUESTED

25. Petitioner requests that the Court order that the Tmst be modified to allow Daniel S.

   Weiner to become trustee of the Trust upon attaining age 18 on March 11, 2014; that

   modification of the Trust will further the purposes of the Trust; that modifying the Trust

   is necessary or appropriate to prevent waste or avoid impaitment of the Tmst's

   administration; and that the Court enter such other orders to effect the modification of the

   Trust.

26. Petitioner brings this action for the purpose of preserving and protecting the interests of

   the Trust estate and its Primary Beneficiary. The relief sought herein is necessary to

   enable the Tmst to fulfill its intended purposes. Accordingly, Petitioner is entitled to

   recover reasonable attomey's fees and court costs from the Trust pursuant to Texas Trust

   Code § 114.064 ("In any proceeding under this code the comt may make such award of

   costs and reasonable and necessary attomey's fees as may seem equitable and just"). If

   any of the other patties to this proceeding retain counsel to represent their interests in this

   cause, the Court should detennine whether all or any portion of the attorney's fees and

   court costs incurred by these parties should be paid by the Tmst.




                                             9
                                              PRAYER

        WHEREFORE PREMISES CONSIDERED, Petitioner prays that the Court grant the

requested relief and deny Mr. Weiner's Plea in Abatement and Plea to the Jurisdiction.

Petitioner further prays for such other and further relief to which Petitioner is justly entitled.

                                                       Respectfully submitted,

                                                       Cantrell & Cantrell, PLLC


                                                       By:~·
                                                       Carol A. Cantrel , Attorney for PetitiOner
                                                       Texas Bar No.: 24043592
                                                       Meredith N. Mciver
                                                       Texas Bar No.: 24078974
                                                       3700 Buffalo Speedway, Suite 520
                                                       Houston, TX 77098
                                                       Phone: 713-333-0555
                                                       Fax: 713-333-0550




                                                10
                                CERTIFICATE OF SERVICE

       I hereby certifY that a true and correct copy of the foregoing instrument has been duly
served, either by hand delivery, certified mail, return receipt requested, electronic service, or
facsimile, to counsel of record indicated below, on this J.\~ day of "-.\0~, 2013.

Sarah Patel Pacheco
Kathleen Tanner Beduze
Crain Caton & James
Five Houston Center,
1401 McKinney, 17th Floor
Houston, TX 77010
spacheco@craincaton.com
713-658-1921 (facsimile)




                                                   CAROL A. CANTRELL
                              Exhibit A



                   DANIEL STEVEN WEINER 1996 TRUST


     By this trust agreement, Andy I. Weiner and Katherine Friedman
Weiner, husband and wife,· both of Harris County, Texas, as
"trusters," establish the Daniel Steven Weiner 1996 Trust for the
benefit of their son, Daniel steven Weiner ("Daniel"), born
March 11, 1996.   Trusters grant, assign and deliver to Andy I.
Weiner and Katherine Friedman weiner, both of Harris County, Texas,
as "trustees," the property described in Attachment A. Attachment
A, which is captioned "Initial Contributions to the Daniel Steven
weiner 1996 Trust," is incorporated by reference as a part of this
trust agreement.
     This trust agreement and the trusts established by it are
irrevocable.   No person shall have the right to revoke or amend
this trust agreement or any of its provisions. However, property
acceptable to the trustee may be added to any trust from time to
time in the future by trusters or by any other person (including
additions pursuant to the provisions of the last will of any
person).

     All references to "trustee" shall refer to the person or
persons then acting as such.

     A.    PRIMARY TRUST

A-1.   Distributions.  The income of the trust may be accumulated
and retained, in whole or in part, or the trustee may distribute to
Daniel, from time to time, so much or all of the trust estate as,
in the trustee's discretion, is in Daniel's best interests.

A-2.   Termination.  Daniel may withdraw any part or all of the
trust estate within 60 days after he becomes age 21, and may
thereby terminate the trust as to the part withdrawn.    Exercise of
this withdrawal right shall be by one or more written instruments
delivered to the trustee within the 60-day period.    If or to the
extent that Daniel does not exercise this withdrawal right, the
trust shall continue until Daniel becomes age 30 or dies before
that age, at which time the trust estate shall be distributed:

     (a)    To Daniel.

     (b) If Daniel is not then living, to such one or more
persons, corporations or organizations (including Daniel's estate),
as Daniel appoints by a will which specifically refers to this
power of appointment.    If or to the extent that Daniel does not
effectively exercise this power of appointment, the trust estate
shall be distributed:

     (1)    To Daniel's descendants,

     (2)  If none of Daniel's descendants is then living, to
trusters' descendants.
      ( 3) If none   of trusters 1      descendants   is   then   living,   to
 trusters' heirs.

A-3. Payment of Taxes.     If Daniel's will contains no contrary
directions, the trustee shall pay from the trust estate the entire
increment in taxes payable by reason of Daniel's death (including
any interest or penalties thereon) to the extent (if any) that the
total of such taxes is greater than would have been imposed if no
portion of the trust estate were taken into account in determining
such taxes.

     B.    CONTINGENT TRUSTS

B-1. Trusts Established. Any portion of a trust estate upon the
trusts termination (other than a portion withdrawn by Daniel
pursuant to Paragraph A-2) which would be distributable to a
beneficiary who is under age 30 or to a beneficiary who is under a
legal disability instead shall be distributed to the trustee of a
Contingent Trust (unless otherwise directed by the valid exercise
of a power of appointment).        Each beneficiary's portion so
distributed shall be held and administered as the initial trust
estate of a separate trust for the beneficiary.      However, if a
Contingent Trust is already in existence for that beneficiary, any
additional portion to be distributed to the trustee of a Contingent
Trust for the beneficiary shall be added to the trust estate of the
existing contingent Trust.

B-2. Distributions.      The income of each Contingent Trust may be
accumulated and retained, in whole or in part, or the trustee may
distribute to the beneficiary for whom the trust was established,
from time to time, so much or all of the trust estate as, in the
trustee's discretion, is in the beneficiary's best interests.

B-3. Termination. Each contingent Trust shall terminate when the
beneficiary for whom the trust was established has become age 30
and is under no legal disability or upon the beneficiary's earlier
death. Upon termination, the trust estate shall be distributed:

     (a)    To the beneficiary.

      (b) If the beneficiary is not then living, to such one or
more persons, corporations or organizations as the beneficiary
appoints by a will which specifically refers to this power of
appointment.   If none of the beneficiary's descendants is then
living, this power may not be exercised in favor of the
beneficiary, the beneficiary's estate, the beneficiary's creditors
or the creditors of the beneficiary's estate. If or to the extent
that the beneficiary does not effectively exercise this power of
appointment, the trust estate shall be distributed:

     (1)   To the beneficiary's descendants.


                                  -2-
      (2) If none of the beneficiary's descendants is then living,
 to the descendants of the beneficiary's nearest ancestor who was
 one of trusters' descendants and who has descendants then living.
      (3) If none of these persons is then living, to trusters,
 descendants.
     ( 4) If none of trusters'       descendants    is then   living,   to
trusters' heirs.
      C.   DISTRIBUTIONS

c-1. Distributions to or for Beneficiaries. During the term of a
trust, any distribution to be made to a beneficiary from the trust
may be made (i) to the beneficiary, (ii) if the beneficiary is
under a legal disability or if the trustee determines that the
beneficiary is unable to properly manage his affairs, to a person
furnishing support, maintenance or education for the beneficiary or
with whom the beneficiary is residing, for expenditure on the
beneficiary's behalf, or (iii) to a custodian for a minor
beneficiary, as selected by the trustee, under the Uniform Gifts to
Minors Act of any state. Alternatively, the trustee may otherwise
apply all or a part of the distribution for the beneficiary 1 s
benefit. However, no such distribution shall be made to a trustor,
to any spouse of a trustor, or in any manner that discharges a
legal obligation (including an obligation of support) of a trustor
or any spouse of a trustor. Any distribution under this paragraph
shall be a full discharge of the trustee with respect thereto.

c-2.  Best Interests of Beneficiary.    In making distributions in
the "best interests" of a beneficiary, the trustee may consider the
age of the beneficiary, the costs of the beneficiary's support,
maintenance, education and comfort without regard to any other
resources available to the beneficiary for these purposes, the
effect of any distribution upon the income and transfer tax
liability of the beneficiary or of the trust, and any other factors
deemed relevant by the trustee.

     D.    OFFICE OF TRUSTEE

D-1.   Successor Trustee, Co-Trustee.  The following provisions
shall apply to each separate trust established under this trust
agreement:

      (a) Successor Trustee.  Should Andy I.       Weiner or Katherine
Friedman Weiner cease to act as trustee, for        any reason, the one
remaining shall continue to act as trustee.         Should both Andy I.
Weiner and Katherine Friedman Weiner cease to      act as trustees, for
any reason, trusters appoint Bayle Weiner          Drubel as successor
trustee.



                               -3-
      (b) Appointment of Successor Trustee by Trustee. At any time
after qualifying as trustee, any trustee may appoint a successor
trustee to act in his place, either immediately or in the future
upon any stated contingency, and may thereby supplement the
provisions of subparagraph (a).
      (c) Appointment of Successor Trustee by Beneficiaries. If at
any time there is no trustee acting and none has been appointed, a
majority of the beneficiaries (acting through the beneficiary's
natural or legal guardian or legal representative, in the case of
a beneficiary under a legal disability) who might then be entitled
to receive a distribution from the trust estate shall appoint a
successor trustee.
     (d)   Appointment of Co-Trustee.    The    trustee    (acting
unanimously if more than one) may appoint one or more co-trustees.
     (e) Who May Be Appointed. A successor trustee or co-trustee
may be any individual, bank or trust company and may be domiciled
anywhere.
      (f)  Procedure for Appointment. Appointment shall be made by
written instrument filed with the trust records.          Any such
appointment may be changed or revoked prior to the date it becomes
effective.    Any such appointment may be limited in any manner
deemed advisable by the person making the appointment, including,
for example, restricting the power over distributions as necessary
to avoid the imposition of any tax upon the trust, the appointee or
the appointee's estate.                                   ·

D-2. Resignation of Trustee. A trustee may resign from a trust
without the necessity of any court proceeding upon meeting these
conditions:
      (a) Notice. At least 30 days' written notice      (if not waived)
shall be given to each beneficiary who might then       be entitled to
receive a distribution from the trust estate, If a      beneficiary is
under a legal disability, notice shall be given to       (or waived by)
the beneficiary's natural or legal guardian.
      (b)  Accounting.   If and to the extent required by the
successor trustee, an accounting for the administration of the
trust shall be given to the successor trustee.      The successor
trustee shall be fully protected in relying upon such accounting.

D-3.    Rights and Liabilities.
       (a)  Bond Not Required. No bond or other security shall be
       required of any trustee.

       (b)   Liabilities.   This agreement shall always be construed in


                                   -4-
favor of the validity of any act by or omission of any trustee. A
trustee shall not be liable for any act or omission except in the
case of gross negligence, bad faith or fraud.    Specifically, in
assessing the propriety of any investment of a trust estate, the
overall performance of the entire trust estate shall be taken into
account.
     (c) Compensation. Each trustee shall be entitled to receive
reasonable compensation for services actually rendered to a trust.
     E.   ADMINISTRATION
E-1. General Powers of Trustee. To carry out the trust purposes
but subject to any limitations stated elsewhere herein, the trustee
of each trust shall have the following powers, which may be
exercised free from court supervision, and which shall exist until
all of the trust estate has been distributed:
     (a) Trust Estate. The trustee may invest and reinvest all or
any part of the trust estate in property of any description and may
retain as a part of the trust estate any property acquired at any
time and in any manner. Specifically, and without regard to the
provisions of any applicable state law, the trustee may retain, or
invest and reinvest in, property unproductive of income, shares of
open or closed end investment trusts or companies, wasting assets,
and any other property, regardless of location and without regard
to any requirement of diversification as to kind or amount.
      (b)  Business Interests. The trustee may continue operation
of any business entity, in any business form, with all or any part
of the trust estate, and may reorganize or liquidate any such
entity at any time.
      (c) Transfers. Loans. The trustee may lease, sell, transfer,
or encumber in any manner (including with purchase money mortgages)
all or any part of the trust estate, and may loan or borrow money
in any manner (including by joint and several obligations) with or
without security. Subject to the provisions of Paragraph E-3(a),
the trustee may purchase assets from the estate of a trustor and
may loan funds to the estate of a trustor at such rate Of interest
and with such security as the trustee determines to be in the best
interests of the current beneficiaries of the trust.
      (d) Dealings With Related Parties. The trustee may deal with
any person or entity regardless of any relationship or identity of
any trustee to or with that person or entity and may hold or invest
all or any part of the trust ef;tate in common or undivided
interests with that person or entity.
     (e) Agents, Employees. The trustee may employ and compensate
agents and other employees ~nd may delegate to them any and all
discretions and powers.
                               -5-
       (f) Partitions. Distributions. The trustee may partition all
 or any part of any interest, may pay and receive such moneys or
 properties as may be necessary to equalize differences, and in so
 doing (i) may make any distribution of all or any part of the trust
 estate in any manner (including composing shares differently) and
 (ii) may evaluate any property, which valuation shall be binding on
 all beneficiaries.
     (g)   Claims, Controversies.    The trustee may maintain and
defend any claim or controversy by or against the trust without the
joinder or consent of any beneficiary.

       (h)    Additional Powers. In addition, the trustee shall have
 all rights, privileges and powers now or hereafter granted to
 trustees in Texas, including those granted under the Texas Trust
Code.      Any subsequent legislation or regulation expanding or
limiting the rights, privileges and powers granted a trustee shall
apply to all trusts hereunder unless the trustee elects not to have
such legislation or regulation apply to a particular trust by a
written instrument filed with the trust records.       However, the
provisions made for the various beneficiaries under this trust
agreement are exclusive. Any statute that purports to enlarge the
class of beneficiaries to whom distributions may be made or the
purposes for which distributions may be made shall not apply to any
trust.     All trust powers may be exercised upon such terms as the
trustee deems advisable and may affect trust properties for any
length of time regardless of the duration of the trust. Generally,
and subject only to the terms of this trust agreement, the trustee
shall hold, manage, control, use, invest, reinvest, and dispose of
the trust estate to the same extent as if the trustee were the fee
simple owner thereof.

E-2.     Principal and Income Determinations.      The receipts,
disbursements and reserves of each trust may be allocated, on a
cash or accrual basis, between principal and income in the
trustee's discretion without regard to the provisions of any
statute.    To the extent the trustee does not exercise this
discretionary power, the provisions of the Texas Trust Code shall
control.
E-3.   Restrictions on the Exercise of Certain Powers.

      (a)  Dealings with Trust Estate. No power granted the trustee
shall be construed to enable any person to purchase, exchange, or
otherwise deal with or dispose of any trust estate for less than an
adequate consideration in money or money's worth or to authorize
loans to any person without adequate interest.      No part of any
trust estate may be (i) loaned to a trustor or to any spouse of a
trustor or (ii) applied to the payment of premiums on policies of
insurance on the life of a trustor or on the life of any spouse of
a trustor.


                                -6-
      (b)   Distributions to or for Trustee. Any power to make
discretionary distributions to or for the benefit of a person who
is serving as trustee of a trust (including distributions to the
person's spouse and distributions in discharge of any legal
obligation of the person) shall be exercisable solely by the
trustee or trustees other than that person. If no other trustee is
then serving, such power shall not be exercisable.

E-4.  Release and Delegations of Powers.    Any power granted to a
trustee may be released, in whole or in part, temporarily or
permanently. Except as provided in Paragraph E-3, any such power
may be delegated, in whole or in part, temporarily or permanently,
to any other trustee then acting. A release or delegation shall be
by written instrument filed with the records of each trust to which
the release or delegation applies.

     F.   DEFINITIONS AND GENERAL PROVISIONS

F-1. Trust Estate.   "Trust estate" means all assets, however and
whenever acquired (including income and accumulated income) 1 which
may belong to a trust at any given time.

F-2. Descendants. "Descendants" means the legitimate children of
the person or persons designated and the legitimate lineal
descendants of such children, and includes any person adopted
before becoming age 18 and the adopted person's descendants.      A
posthumous child shall be considered as living at the death of his
parent. Whenever a distribution is to be made to the descendants
of any person, the property to be distributed shall be divided into
as many equal shares as there are living children of the person and
deceased children of the person who left descendants who are then
living.  Each living child shall take one share and the share of
each deceased child shall be divided among his then living
descendants in the same manner.   "Trusters' descendants" includes
only those persons descended from both trusters.
F-3.   Heirs.   Any distribution to be made to the "heirs" of a
person shall be made to the individuals who would have inherited
the person's personal property if the person had died intestate at
the time the distribution is to be made, domiciled in Texas and not
married, under the laws of Texas in force on the effective date of
this trust agreement, with the shares of taking determined by those
laws. However, both trusters and any spouse of a trustor shall be
deemed to have died prior to the time that any such distribution is
to be made. A distribution to "trusters• heirs" shall be made to
the heirs of Andy I. Weiner.
F-4. Internal Revenue Code.    "Internal Revenue Code" means the
Internal Revenue Code of 1986, as amended, or corresponding
provisions of any subsequent federal tax laws.



                               -7-
 F-5. other Terms. The use of any gender includes · the other
 genders, and the use of either the singular or the plural includes
 the other.

F-6. Spendthrift Provision. No beneficiary shall have the power
to anticipate, encumber, or transfer his interest in any trust
estate in any manner. No part of any trust estate shall be liable
for or charged with any debts, contracts, liabilities or torts of
a beneficiary or subject to seizure or other process by any
creditor of a beneficiary.    Nothing in this paragraph shall be
construed to limit the otherwise valid exercise of a power of
appointment or right of withdrawal given by this trust agreement.

F-7. Texas Law Applies. The situs of the trusts established under
this trust agreement is Texas.     Wherever possible, the laws of
Texas shall apply to the construction, administration and validity
of each trust.
F-8. Maximum Term of Trusts. No trust shall continue for a period
longer than 21 years after the death of the last to die of trusters
and all of trusters' descendants who are living on the effective
date of this trust agreement. Any trust still in force at the end
of such period shall terminate, and the trust estate shall be
distributed to the beneficiary for whom the trust was established.

 F-9.  Powers of Appointment Exercisable by Beneficiaries.       In
exercising a power of appointment given to a beneficiary by this
trust agreement, the beneficiary may appoint the property subject
to the power outright to the appointee, in trust, or to a custodian
for the appointee under the Uniform Gifts to Minors Act of any
state. If the beneficiary appoints to a custodian, he may select
the custodian. If the beneficiary appoints in trust, he may select
the trustee or trustees, may establish such administrative terms
for the trust as he deems appropriate, and may impose lawful
spendthrift restrictions.   He may give the trustee discretionary
powers over the income and principal, and may create a trust that
has several permissible distributees. He may create life interests
or other limited interests in some appointees with future interests
in favor of other appointees, may appoint different types of
interests among the appointees, and may create new powers of
appointment in a trustee or trustees or in any appointee. He may
impose lawful conditions on an appointment and,, in general, may
appoint to or among the appointees in any lawful manner.

In determining whether, in what manner and to what extent a
testamentary power of appointment has been exercised by a
beneficiary, the trustee may act in reliance upon a court order
admitting an instrument to probate as the beneficiary's last will
or an order finding that the beneficiary died intestate.     Unless
within six months after the beneficiary's death the trustee has
actual notice of the existence of proceedings to probate a will of
the beneficiary, the trustee shall assume that the beneficiary died

                                -8-
intestate. The foregoing prov1s1ons are intended to expedite the
prompt and efficient administration of the trust and to protect the
trustee from any action taken or distribution made in accordance
with these provisions.   Nothing in this paragraph shall limit or
qualify any power of appointment given by this trust agreement or
any right which an appointee or taker in default of appointment may
have against any person receiving a distribution from the trustee
irrespective of the place of probate or of the time of discovery of
a will exercising the power or any other action taken in the
beneficiary's estate.

     G.   ACCEPTANCE BY TRUSTEE

By signing this trust agreement, the trustee (i) accepts these
trusts and all of the rights, powers and duties attached to the
office of trustee as provided herein, (ii) agrees to serve as
trustee of the Daniel Steven Weiner 1996 Trust and of any
Contingent Trusts which may be established under this trust
agreement, (iii) acknowledges receipt of the property described in
Attachment A, and (iv) agrees to hold and administer each trust
estate in accordance with the terms of this trust agreement.

    This trust agreement is executed effective as of the 20th day
of March, 1996.



                              Andy I. Weiner, Trustor and
                              Trustee



                              Katherine Friedman Weiner,
                              Trustor and Trustee




                                  -9-
                       ATTACHMENT A: INITIAL CONTRIBUTIONS
                      TO THE DANIEL STEVEN WEINER 1996 TRUST




                                      $1.00




                                      Andy I. Weiner, Trustor and
                                      Trustee


                                      Katherine Friedman We1ner,
                                      Trustor and Trustee
3559:painsc\0157136




                                      -10-
"
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                                                 Exhibit B

                                              NO. 2011-01040

           IN THE MATTER OF                              §                   IN THE DISTRICT COURT
           THE MARRIAGE OF                               §
                                                         §
                                                                                               vr. wr
                                                                                                                 sf~
           KATHERINE F. WEINER
           AND
           ANDY I. WEINER                        F cI
                                                    01
                                                         §    E d. o9TH JUDICIAL DISTRICT
                                                                .I
                                                             Dame
                                                              t Clerk
                                                                                                            rc
           AND IN THE INTEREST OF             M~ 2 9 20\Z
           DAVID A. WEINER, DANIELS.              §
           WEINER AND MICHAEL H. Time: --uiH§ii~couUnin~0.T'&.ie.a;s,- - -
           WEINER, CHILDREN        ey             § oepu>1            HARRIS COUNTY, TEXAS

                                 AGREED FINAL DECREE OF DIV:ORCE

                    On February 17, 2012,     the Court heard the parties' agreement for the

      terms of their Agreed Final Decree of Divorce as set out in the parties' Mediated

      Settlement Agreement.            Andy I. Weiner and his attorney, Eileen M. Gaffney

      appearing for Joan F. Jenkins appeared in person and proved up the agreement.

      After hearing the parties' agreement, the court set this case for entry.

      Appearances

                    Petitioner, Katherine F. Weiner, appeared at entry through her attorney of

      record, Randy B. Wilhite and announced ready.

                    Respondent, Andy I. Weiner, appeared in person and through attorney of

     record, Joan F. Jenkins, and announced ready.

     Record

                    The making of a record of testimony was waived by the parties with the



     Weiner- Agreed Final Decree of Divorce              RECORDER'S MEMORANDUM                    Page 1
                                                         T\11& Instrument Is of poor quality


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         consent of the Court.

         Jurisdiction and Domicile

                 The Court finds that the pleadings of Petitioner ar.e in due form and contain

         all the allegations, information, and prerequisites required by law. The Court,

         after receiving evidence, finds that it has jurisdiction of this case and of all the

         parties and that at least sixty days have elapsed since the d~te the suit was filed.

                 The Court further finds that, at the time this suit was filed, Petitioner had

         been a domiciliary of Texas for the preceding six-month period and a resident of

        the county in which this suit was filed for the preceding ninety-day period. All

        persons entitled to citation were properly cited.

        Jury

                 A jury was waived, and questions of fact and of law were submitted to the

        Court.

        Agreement of Parlies

                 The Court finds that the parties have entered into an Agreement Incident to

        Divorce, in a document separate from this Final Decree of Divorce. The Court

        approves the agreement and incorporates it by reference as part of this decree as

        if it were recited herein verbatim and orders the parties to do all things-necessary to

        effectuate the agreement. A copy of the agreement is not filed with the records of

  ii    this Court.

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  0     Weiner- Agreed Final Decree of Divorce
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         The agreements in this Final Decree of Divorce were reached in mediation

 with Harry L. Tindall. This Final Decree of Divorce is stipulated to represent a

 merger of a mediated settlement agreement between the parties. To the extent

 there exist any differences between the mediated settlement agreement and this

 Final Decree of Divorce, this Final Decree of Divorce shall control in all instances.

 Divorce

        IT IS ORDERED AND DECREED that Katherine F. Weiner, Petitioner, and

 Andy I. Weiner, Respondent, are divorced and that the marriage between them is

 dissolved on the ground of insupportability.

 Children of the Maniage

        The Court finds that Petitioner and Respondent are the parents of the

following children:

        Name:                            David A. Weiner
        Sex:                             Male
        Birth date:                      June 14, 1994
        Home state:                      Texas
        Social Security number:          xxx-xx-x861
        Driver's license number
        and issuing state:               xxxxx273, Texas

       Name:                             Daniel S. Weiner
       Sex:                              Male
       Birth date:                       March 11, 1996
       Home state:                       Texas
       Social Security number:           xxx-xx-x039
       Driver's license number
       and issuing state:                · xxxxx996Texas




Weiner- Agreed Final Decree of Divorce
               •
              i



                   Name:                           Michael H. Weiner
                   Sex:                            Male
                   Birth date:                     November 1, 1999
                   Home state:                     Texas
                   Social Security number:         xxx-xx-x735
                   Driver's license number
                   and issuing state:              N/A

                   The Court finds no other children of the marriage are expected.

          Parenting Plan

                   The Court finds that the provisions in this decree relating to the rights and

          duties of the parties with relation to the children, possession of and access to the

          children, child support, and optimizing the development of a close and continuing

         relationship between each party and the children constitute the parties' agreed ·

         parenting plan.

         ConseNatorship

                   The Court, having considered the circumstances of the parents and of the

         children, finds that the following orders are in the best interest of the children.

                   IT IS ORDERED that Katherine F. Weiner and Andy I. Weiner are appointed

         Joint Managing Conservators of the following children:        David A. Weiner, Daniel
  ~



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 '8      S. Weiner and Michael H. Weiner.
 ""~
 .,.               IT IS ORDERED that, at all times, Katherine F. Weiner, as a parent joint
     •
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 "'
 [::;    managing conservator, shall have the following rights:
 00
 ~



 "'~            1.   the right to receive information from any other conservator of the
.0


zs       children concerning the health, education, and welfare of the children;

 il
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A        Weiner- Agreed Final Decree of Divorce                                   Page4
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             2.    the right to confer with the other parent to the extent possible befor.e
        making a decision concerning the health, education, and welfare of the children;

              3.     the right of access to medical, dental, psychological, and educational
        records of the children;

               4.      the right to consult with a physician, dentist, or psychologist of the
        children;

              5.    the right to consult with school officials concerning the children's
        welfare and educational status, including school activities;

                6.     the right to attend school activities;

              7.     the right to be designated on the children's records as a person to be
       notified in case of an emergency;

              8.    the right to consent to medical, dental, and surgical treatment during
       an emergency involving an immediate danger to the health and safety of the
       children; and

             9.    the right to manage the estates of the children to the extent the
       estates have been created by the parent or the parent's family.

                IT IS ORDERED that, at all times, Andy I. Weiner, as a parent joint

       managing conservator, shall have the following rights:

              1.   the right to receive information from any other conservator of the
       children concerning the health, education, and welfare of the children;

            2.    the right to confer with the other parent to the extent possible before
       making a decision concerning the health, education, and welfare of the children;

             3.     the right of access to medical, dental, psychological, and educational
       records of the children;

 li           4.      the right to consult with a physician, dentist, or psychologist of the
 j     children;
 §
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 50
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       Weiner -Agreed Final Decree of Divorce
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       5.    the right to consult with school officials concerning the children's
 welfare and educational status, including school activities;

         6.     the right to attend school activities;

        7.     the right to be designated on the children's records as a person to be
 notified in case of an emergency;

        8.    the right to consent to medical, dental, and surgical treatment during
 an emergency involving. an immediate danger to the health and safety of the
 children; and

       9.    the right to manage the estates of the children to the extent the
 estates have been created by the parent or the parent's family.

         IT IS ORDERED that, at all times, Katherine F. Weiner and Andy I. Weiner,

 as parent joint managing conservators, shall each have the following duties:

       1.    the duty to inform the other conservator of the children in a timely
manner of significant information concerning the health, education, and welfare of
the children; and

       2.    the duty to inform the other conservator of the children if the
conservator resides with for at least thirty days, marries, or intends to marry a
person who the conservator knows is registered as a sex offender under chapter
62 of the Code of Criminal Procedure or is currently charged with an offense for
which on conviction the person would be required to register under that chapter.
IT IS ORDERED that this information shall be tendered in the form of a notice
made as soon as practicable, but not later than the fortieth day after the date the
conservator of the children begins to reside with the person or on the tenth day
after the date the marriage occurs, as appropriate. IT IS ORDERED that the
notice must include a description of the offense that is the basis of the person's
requirement to register as a sex offender or of the offense with which t~e person is
charged.     WARNING:         A CONSERVATOR COMMITS AN OFFENSE
PUNISHABLE AS A CLASS C MISDEMEANOR IF THE CONSERVATOR FAILS
TO PROVIDE THIS NOTICE.

         IT IS ORDERED that, during her periods of possession, Katherine F.



Weiner -Agreed Final Decree of Divorce
     .
     1




 Weiner, as parent joint managing conservator, shall have the following rights and

 duties:

        1.    the duty of care, control, protection, and reasonable discipline of the
 children;
        2.    the duty to support the children, including providing the children with
 clothing, food, shelter, and medical and dental care not involving an invasive
 procedure;                                                                   -

        3.    the right to consent for the children to medical and_ dental care not
 involving an invasive procedure; and

         4.     the right to direct the moral and religious training of the children.

         IT IS ORDERED that, during his periods of possession, Andy I. Weiner, as

 parent joint managing conservator, shall have the following rights and duties:

       1.       the duty of care, control, protection, and reasonable discipline of the
children;

       2.    the duty to support the children, including providing the children with
clothing, food, shelter, and medical and dental care not involving an invasive
procedure;

       3.    the right to consent for the children to medical and dental care not
involving an invasive procedure; and

         4.    the right to direct the moral and religious training of the children.

         IT IS ORDERED that Katherine F. Weiner, as a parent joint managing

conservator, shall have the following rights and duty:

       1.    the exclusive right to establish the primary residence and legal
domicile of the children in Harris County, Texas or a county that is contiguous to
Harris County, Texas, subject to the provisions hereinafter.

         2.    the exclusive right to consent to medical, dental, and surgical



Weiner- Agreed Final Decree of Divorce                                      Page 7
 treatment involving invasive procedures;

       3.     the exclusive right to consent to psychiatric and psychological
 treatment of the children;

        4.     the exclusive right to receive and give receipt for periodic payments
 for the support of the children and to hold or disburse these funds for the benefit of
 the children;

      5.     the exclusive right to represent the children in legal. action and to
 make other decisions of substantial legal significance concerning the children;

      6.     the exclusive right to consent to marriage and to enlistment in the
 armed forces of the United States;

        7.   the right, subject to the agreement of the other parent conservator, to
 make decisions concerning the children's education;
        8.   except as provided by section 264.0111 of the Texas Family Code,
 the independent right to the services and earnings of the children;

       9.    except when a guardian of the children's estates or a guardian or
attorney ad litem has been appointed for the children, the independent right to act
as an agent of the children in relation to the children's estates if the children's
action is required by a state, the United States, or a foreign government; and

      10. the exclusive duty to manage the estates of the children to the extent
the estates have been created by community property or the joint property of the
parent.

        IT IS ORDERED that Andy I. Weiner, as a parent joint managing

conservator, shall have the right, subject to the agreement of the other parent

conservator, to make decisions concerning the children's education, and in this

regard, the Court finds that Andy I. Weiner has agreed for each child to remain at

the Kinkaid School through each child's graduation from such School, and that

there are other more specific provisions herein further delineating the obligation of



Weiner- Agreed Final Decree of Divorce
           .
           ·I




       Andy I. Weiner to pay for the Kinkaid School for the children.

                 The Court finds that, in accordance with section 153.001 of the Texas

       Family Code, it is the public policy of Texas to assure that children will have

       frequent and continuing contact with parents who have shown the ability to act in

       the best interest of the child, to provide a safe, stable, and nonviolent environment

       for the child, and to encourage parents to share in the rights and duties of raising

       their child after the parents have separated or dissolved their marriage. IT IS

       ORDERED that, so long as the principal residence of Andy I Weiner is in either

       Harris County, Texas or a county that is contiguous to Harris County, Texas, the

       primary residence of the children shall be in Harris County, Texas or a county that

      is contiguous to Harris County, Texas, and the parties shall not remove the

      children from such designated area for the purpose of changing the primary

      residence of the children until modified by further order of the court of continuing

      jurisdiction or. by written agreement signed by the parties and filed with the court.

                IT IS ORDERED that the following custodial accounts now held by the

      parties for the parties' children are placed· under the sole and exclusive control of
...
~




':5   Katherine F. Weiner:
"'
                1.    Fidelity UTMA Ace! Ending in #4270; and

                2.   Fidelity UTMA Acct Ending in #6843.

                Unless these documents have been previously executed, Andy I. Weiner is




      Weiner- Agreed Final Decree of Divorce                                  Page 9
•'        •'



      ORDERED to appear in the law offices of Randall B. Wilhite at 4265 San Felipe

      Street, Suite 1400, Houston, Texas 77027, at 2:00p.m. on March 30, 2012, and to

      execute, have acknowledged, and deliver to Katherine F. Weiner all documents

      necessary to effectuate Katherine F. Weiner's sole and exclusive control of the

      accounts.

                IT IS ORDERED that the following children's trusts are held in irrevocable

      trusts, which shall continue as written, and that each party will take any and all

      necessary steps to provide full co-trustee ownership and control of each such

      account including the placing of such accounts in a deposit and withdrawal

      agreement requiring both co-trustees to disburse funds; also known as an "and"

     account:

               1.    Fidelity Trust Acct Ending in #8634 (David);

               2.    Fidelity Trust Acct Ending in #3958 (Daniel); and

               3.    Fidelity Trust Acct Ending in #1942 (Michael).

     Possession and Access

               1.    Modified Possession Order

                     The Court finds that the parties have entered into a Mediated
               Settlement Agreement providing for a non-expanded, non-standard
               possession order as more specifically herein provided.

                     IT IS ORDERED that each conservator shall comply with all terms
               and conditions of this Modified Possession Order. IT IS ORDERED that
               this Modified Possession Order is effective immediately and applies to all
               periods of possession occurring on and after the date the Court signs this



     Weiner- Agreed Final Decree of Divorce ·                   Page 10
         Modified Possession Order.       IT IS, THEREFORE, ORDERED:

                 (a)    Definitions

                       1.     In this Modified Possession Order "school" means the
                primary or secondary school in which the child is enrolled or, if the
                child is not enrolled in a primary or secondary school, the public
                school district in which the child primarily resides.

                       2.    In this Modified Possession Order "child" includes each
                child, whether one or more, who is a subject of this suit while that child
                is under the age of eighteen years and not otherwise emancipated.

                (b)     Mutual Agreement or Specified Terms for Possession

                       IT IS ORDERED that the conservators shall have possession of
                the child at times mutually agreed to in advance by the parties, and, in
                the absence· of mutual agreement, it is ORDERED that the
                conservators shall have possession of the child under the specified
                terms set out in this Modified Possession Order.

                ©      Except as otherwise expressly provided in this Modified
                Possession Order, Andy I. Weiner shall have the right to possession
                of the child as follows:

                        1.     Weekends -

                              On weekends, beginning at 6:00 p.m., on the first, third,
                and fifth Friday of each month and ending at 6:00 p.m. on the
                following Sunday, provided that upon 14 days' advance written notice
                of an out-of-town trip, Andy I. Weiner may pick up at 4 p.m. one time
                every 60 days.

                     2.    Thursdays - On Thursday of each week during the
               regular school term, beginning at 4:00 p.m. and ending at 8:00 p.m.

                     3.    Spring Vacation in Even-Numbered Years - In
               even-numbered years, beginning at 5:00p.m. on the day the child is
               dismissed from school for the school's spring vacation and ending at
               5:00 p.m. on the day before school resumes after that vacation.



Weiner • Agreed Final Decree of Divorce                       Page 11
'




             4.      Extended Summer Possession by Andy I. Weiner -

            With Written Notice by April 1 - On or before April 1•t of each
     year, Andy I. Weiner shall designate one period of 14 consecutive
     days (which may be exercised in 2 one week periods of possession,
     separated by no less than 14 days), beginning no earlier than the day
     after the child's school is dismissed for the summer vacation and
     ending no later than 7 days before school resumes for the next school
     year, during which he shall have his summer periods of possession
     with the children. These periods of possession shall begin and end at
     6:00 p.m. on each applicable day.

            Notwithstanding the Thursday periods of possession during the
     regular school term and the weekend periods of possession
     ORDERED for Andy I. Weiner, it is expressly ORDERED that
     Katherine F. Weiner shall have a superior right of possession of the
     child as follows:

          1.    Spring Vacation in Odd-Numbered Years - In
    odd-numbered years, beginning at 5:00 p.m. on the day the child is
    dismissed from school for the school's spring vacation and ending at
    6:00 p.m. on the day before school resumes after that vacation.

           2.    Summer Weekend Possession by Katherine F. Weiner-
    On or before April 15th of each year, Katherine F. Weiner shall
    designate 14 consecutive days, or at her election, two 7 day periods
    beginning no earlier than the day" after the child's school is dismissed
    for the summer vacation and ending no later than 7 days before
    school resumes for the next school year, during which she will have
    her summer period(s) of possession with the children, provided the
    dates do not conflict with Father's Day weekend or the summer
    periods designated by Andy I. Weiner. These periods of possession
    shall begin and end at 6:00 p.m. on each applicable day.

    (d)     Holidays

         Notwithstanding the weekend and Thursday periods of
    possession of Andy I. Weiner, Katherine F. Weiner and Andy I.
    Weiner shall have the right to possession of the child as follows:



    Weiner- Agreed Final Decree of Divorce                    Page12   ¥
       1.     Christmas Holidays in Even-Numbered Years - In
 even-numbered years, Andy I. Weiner shall have the right to
 possession of the child beginning at 6:00 p.m. on the day the child is
 dismissed from school for the Christmas school vacation and ending
 at noon on December 28, and Katherine F. Weiner shall have the right
 to possession of the child beginning at noon on December 28 and
 ending at 6:00 p.m. on the day before school resumes after that
 Christmas school vacation.

       2.    Christmas Holidays in Odd-Numbered Years - In
 odd-numbered years, Katherine F. Weiner shall have the right to
 possession of the child beginning at 6:00 p.m. on the day the child is
 dismissed from school for the Christmas school vacation and ending
 at noon on December 28, and Andy I. Weiner shall have the right to
 possession of the child beginning at noon on December 28 and
 ending at 6:00 p.m. on the day before school resumes after that
 Christmas school vacation.

      3.    Thanksgiving     in   Odd~Numbered        Years         In
odd-numbered years, Andy I. Weiner shall have the right to
possession of the child beginning at 6:00 p.m. on the day the child is
dismissed from school for the Thanksgiving holiday and ending at
6:00p.m. on the Sunday following Thanksgiving.

      4.    Thanksgiving     in   Even-Numbered Years               In
even-numbered years, Katherine F. Weiner shall have the right to
possession of the child beginning at 6:00 p.m. on the day the child is
dismissed from school for the Thanksgiving holiday and ending at
6:00 p.m. on the Sunday following Thanksgiving.

       5.    Father's Day - Andy I. Weiner shall have the right to
possession of the child each year, beginning at 6:00 p.m. on the
Friday preceding Father's Day and ending at 6:00 p.m. on Father's
Day, provided that if Andy I. Weiner is not oth~rwise entitled under this
Modified Possession Order to present possession of the child, he
shall pick up the child from Katherine F. Weiner's residence and
return the child to that same place.

       6.      Mother's Day- Katherine F. Weiner shall have the right to



Weiner- Agreed Final Decree of Divorce                     Page 13
 possession of the child each year, beginning at 6:00 p.m. on the
 Friday preceding Mother's Day and ending at 6:00 p.m. on Mother's
 Day, provided that if Katherine F. Weiner is not otherwise entitled
 under this Modified Possession Order to present possession of the
 child, she shall pick up the child from Andy I. Weiner's residence and
 return the child to that same place.

 (e)     Undesignated Periods of Possession

        Katherine F. Weiner shall have the right of possession of the
 child at all other times not specifically designated in this Modified
 Possession Order for Andy I. Weiner.

 (f)    General Terms and Conditions

       Except as otherwise expressly provided in this Modified
 Possession Order, the terms and conditions of possession of the child
 are as follows:

      1.    Surrender of Child by Katherine F. Weiner- Katherine F.
Weiner is ORDERED to surrender the child to Andy I. Weiner at the
beginning of each period of Andy I. Weiner's possession at the
residence of Katherine F. Weiner.

       2.    Return of Child by Andy I. Weiner - Andy I. Weiner is
ORDERED to return the child to the residence of Katherine F. Weiner
at the end of each period of possession.

      3.     Surrender of Child by Andy I. Weiner - Andy I. Weiner is
ORDERED to surrender the child to Katherine F. Weiner, if the child is
in Andy I. Weiner's possession or subject to Andy I. Weiner's control,
at the beginning of each period of Katherine F. Weiner's exclusive
periods of possession, at the place designated in this Modified
Possession Order.
      4.    Return of Child by Katherine F. Weiner - Katherine F.
Weineris ORDERED to return the child to Andy I. Weiner, if Andy I.
Weiner is entitled to possession of the child, at the end of each of
Katherine F. Weiner's exclusive periods of possession, at the place
designated in this Modified Possession Order.




Weiner- Agreed Final Decree of Divorce
,.



                    5.    Notwithstanding any other prov1s1on herein to the
            contrary, any child with a driver's license shall be permitted to drive
            himself.to and from each period of possession and during each period
            of possession; however, any child without a driver's license (which at
            this time includes Daniel Weiner and Michael Weiner) is ORDERED
            to ride only with Andy I. Weiner.

                   6.     Personal Effects - Each conservator is ORDERED to
            return with the child the personal effects that the child brought at the
            beginning of the period of possession.

                 7.    Designation of Competent Adult- Each conservator may
           designate any competent adult to pick up and return the child, as
           applicable. IT. IS ORDERED that a conservator or a designated
           competent adult be present when the child is picked up or returned.

                 8.    Inability to Exercise Possession - Each conservator is
           ORDERED to give notice to the person in possession of the child on
           each occasion that the conservator will be unable to exercise that
           conservator's right of possession for any specified period.

                  9.    Written Notice - Written notice shall be made to the other
           parent via e-mail correspondence to the other parent's e-mail
           address, including all notices from one parent to the other of any
           changes in a party's e-mail address. Each party is ORDERED to
           provide any change in the e-mail address designated by each such
           party as the one to be used for notification by the other party within 7
           days of a change thereof.

           This concludes the Modified Possession Order.

     2.    Provisions for Jewish Religious Holidays

           In addition to the holiday periods of possession set forth in the

     Modified Possession Order, Andy I. Weiner and Katherine F. Weiner shall

     share the Jewish holidays as set forth below:

           a.    Rosh      Hashanah            Even-Numbered   Years.       In   all



          Weiner- Agreed Final Decree of Divorce
f




     even-numbered years Andy I. Weiner shall have possession of the children

     for a period beginning at 5:00 p.m. on the night before the first day of Rosh

     Hashanah and ending at 9:00p.m. on the same day; Katherine F. Weiner

     shall have possession of the children from 10:00 a.m. until 8:00 p.m. on the

     first day of Rosh Hashanah.

            b.      Rosh Hashanah- Odd-Numbered Years.        In all odd-numbered

     years Katherine F. Weiner shall have possession of the children for a period

     beginning at 5:00 p.m. on the night before the first day of Rosh Hashanah

     and ending at 9:00 p.m. on the same day; Andy I. Weiner shall have

     possession of the children from 10:00 a.m. until 8:00 p.m. on the first day of

     Rosh Hashanah.

            c.     Yom Kippur - Odd-Numbered Years - In all odd-numbered

    years, Katherine F. Weiner shall have possession of the children for a period

    beginning at 5:00 p.m. on the night before the first day of Yom Kippur and

    ending at 9:00 p.m. on the same day; Andy I. Weiner shall have possession

    of the children from 10:00 a.m. until8:00 p.m. on the first day of Yom Kippur.

            d.     Yom Kippur - Even-Numbered Years - In all even-numbered

    years, Andy I. Weiner shall have possession of the children for a period

    beginning at 5:00 p.m. on the night before the first day of Yom Kippur and

    ending at 9:00 p.m. on the same day; Katherine F. Weiner shall have




    Weiner- Agreed Final Decree of Divorce                    Page 16
 possession of the children from 10:00 a.m. until 8:00p.m. on the first day of

 Yom Kippur.

         e.     Passover - Even-Numbered Years - In all even-numbered

 years, Andy I. Weiner shall have possession of the children for a period

 beginning at 5:00 p.m. on the night before the first full day of Passover and

 ending at 9:00 p.m. on the same day.

        f.      Passover- Odd-Numbered Years- In all odd-numbered years,

 Katherine F. Weiner shall have possession of the children for a period

 beginning at 5:00 p.m. on the night before the first full day of Passover and

 ending at 9:00 p.m. on the same day.

 3.     Duration

        The periods of possession ordered above apply to each child the

subject of this suit while that child is under the age of eighteen years and not

otherwise emancipated.

4.      Noninterference with Possession

        IT IS ORDERED that neither conservator shall take possession of the

children during the other conservator's period of possession unless there is

a prior written agreement signed by both conservators or in case of an

emergency.

5.     Termination of Orders



Weiner- Agreed Final Decree of Divorce                     Page 17
          1




                       The provisions of this decree relating to conservatorship, possession,

               or access terminate on the remarriage of Katherine F. Weiner to Andy I.

               Weiner unless a nonparent or agency has been appointed conservator of

               the children under chapter 153 of the Texas Family Code.

       Child Support

               IT IS ORDERED that Andy I. Weiner is obligated to pay and shall pay to

      Katherine F. Weiner child support of two thousand two hundred fifty dollars
                                                                 ·                  IJ..prll
      ($2,250) per month, with the first payment being due and payable on           MMeh 1,
      2012, and a like payment being due and payable on the 1st day of each month

      thereafter until the first month following the date of the earliest occurrence of one of

      the events specified below:

               1.'    any child reaches the age of eighteen years or graduates from high

      school, whichever occurs later, subject to the provisions for support beyond the

      age of eighteen years set out below;

              2.      any child marries;

              3.      any child dies;

              4.     the parent-child relationship is terminated based on genetic testing

      that excludes the obligor as the child's genetic father;

              5.     the child enlists in the armed forces of the United States and begins

 ii   active service as defined by section 101 of title 10 ofthe United States Code; or
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                         6.    any child's disabilities are otherwise removed for general purposes.

                         Thereafter, Andy I. Weiner is ORDERED to pay to Katherine F. Weiner child

                support of one thousand eight hundred seventy-five dollars ($1 ,875) per month,

                due and payable on the 1st day of the first month immediately following the date of

                the earliest occurrence of one of the events specified above for another child and a

                like sum of one thousand eight hundred seventy-five dollars ($1 ,875) due and

                payable on the 1st day of each month thereafter until the next occurrence of one of

                the events specified above for another child.

                        Thereafter, Andy I. Weiner is ORDERED to pay to Katherine F. Weiner child

                support of one thousand five hundred dollars ($1 ,500) per month, due and payable

                on the 1st day of the first month immediately following the date of the earliest

               occurrence ofone of the events specified above for another child and a like sum of

               one thousand five hundred dollars ($1 ,500) due and payable on the 1st day of ·

               each month thereafter until the next occurrence of one of the events specified

               above for another child.

                        If the child is eighteen years of age and has not graduated from high school,

               IT IS ORDERED that Andy I. Weiner's obligation to pay child support to Katherine

               F. Weiner shall not terminate but shall continue for as long as the child is enrolled-

                        1.    under chapter 25 of the Texas Education Code in an accredited

    ki         secondary school in a program leading toward a high school diploma or under

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               Weiner -Agreed Final Decree of Divorce                      Page 19
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 section 130.008 of the Education Code in courses for joint high school and junior

 college credit and is complying with the minimum attendance requirements of

 subchapter C of chapter 25 of the Education Code or

         2.     on a full-time basis in a private secondary school in a program leading

 toward a high school diploma and is complying with the minimum attendance

 requirements imposed by that school.

         Withholding from Earnings

         IT IS ORDERED that any employer of Andy I. Weiner shall be ordered to

 withhold from earnings for child support from the disposable earnings of Andy I.

 Weiner for the support of David A. Weiner, Daniel S. Weiner and Michael H.

Weiner.

        IT IS FURTHER ORDERED that all amounts withheld from the disposable

earnings of Andy I. Weiner by the employer and paid in accordance with the order

to that employer shall constitute a credit against the child support obligation.

Payment of the full amount of child support ordered paid by this decree through the

means of withholding from earnings shall discharge the child support obligation.

If the amount withheld from earnings and credited against the child support

obligation is less than 100 percent of the amount ordered to be paid by this decree,

the balance due remains an obligation of Andy I. Weiner, and it is hereby

ORDERED that Andy I. Weiner pay the balance due directly .to the state




Weiner -Agreed Final Decree of Divorce                      Page 20
 disbursement unit specified below.

         On this date the Court authorized the issuance of an Order/Notice to

 Withhold Income for Child Support.

         Payment

         IT IS ORDERED that all payments shall be made through the state

 disbursement unit at Texas Child Support Disbursement Unit, P.O. Box 659791,

 San Antonio, Texas 78265-9791, and thereafter promptly remitted to Katherine F.

 Weiner for the support of the children.   IT IS ORDERED that each party shall pay,

 when due, all fees charged to that party by the state disbursement unit and any

 other agency statutorily authorized to charge a fee.

        Change of Employment

        IT IS FURTHER ORDERED that Andy I. Weiner shall notify this Court and

Katherine F. Weiner by U.S. certified mail, return receipt requested, of any change

of address and of any termination of employment. This notice shall be given no

later than seven days after the change of address or the termination of

employment. This notice or a subsequent notice shall also provide the current

address of Andy I. Weiner and the name and address of his current employer,

whenever that information becomes available.

        Clerk's Duties

        IT IS ORDERED that, on the request of a prosecuting attorney, the title IV-D




Weiner -Agreed Final Decree of Divorce                    Page 21
          agency, the friend of the Court, a domestic relations office, Katherine F. Weiner,

          Andy I. Weiner, or an attorney representing Katherine F. Weiner or Andy I. Weiner,

          the clerk of this Court shall cause a certified copy of the Order/Notice to Withhold

          Income for Child Support to be delivered to any employer.

                  Suspension of Withholding from Earnings

                  The Court finds that good cause exists that no order to withhold from

          earnings for child support should be delivered to any employer of Andy I. Weiner

          as long as no delinquency or other violation of this child support order occurs and

          as long as the Office of the Attorney General Child Support Division .is not

          providing services to Katherine F. Weiner. For the purpose of this provision, a

          delinquency has occurred if Andy I. Weiner has been in arrears for an amount due

         for more than thirty days or the amount of the arrearages equals or is greater than

         the amount due for a one-month period. If a delinquency or other violation occurs

         or if the Office of the Attorney General Child Support Division begins providing

         services to Katherine F. Weiner, the clerk shall deliver the order to withhold

         earnings as provided above.
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   o             ACCORDINGLY, IT IS ORDERED that, as long as no delinquency or other
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         General Child Support Division is not providing services to Katherine F. Weiner, all
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 "'ii    payments shall be made through the state disbursement unit and thereafter
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       promptly remitted to Katherine F. Weiner for the support of the children.       If a

       delinquency or other violation occurs or if the Office of the Attorney General Child

       Support Division begins providing services to Katherine F. Weiner, all payments

       shall be made in accordance with the order to withhold earnings as provided

       above.

               Kinkaid School Tuition

               IT IS ORDERED that Andy I. Weiner shall pay, as child support, through

       graduation from high school, each child's tuition, required fees, required books,

       lunches at school and other fees associated with the children's attendance at the

       Kinkaid School, as billed directly by the school to Andy I. Weiner.

      Health Care

              1.      IT IS ORDERED that Katherine F. Weiner and Andy I. Weiner shall

      each provide medical support for each child as set out in this order as additional

      child support for as long as the Court may order Katherine F. Weiner and Andy I.

      Weiner to provide support for the child under sections 154.001 and 154.002 of the

      Texas Family Code.          Beginning on the day Katherine F. Weiner and Andy I.

      Weiner's actual or potential obligation to support a child under sections 154.001

      and 154.002 of the Family Code terminates, IT IS ORDERED that Katherine F.

      Weiner and Andy I. Weiner are discharged from the obligations set forth in this

 ~    medical support order with respect to that child, except for any failure by a parent
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      Weiner -Agreed Final Decree of Divorce                    Page 23
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 to fully comply with those obligations before that date.

          · 2.   Definitions -

           "Health Insurance" means insurance coverage that provides basic

 health-care services,           including   usual   physician     services,   office   visits,

 hospitalization, and laboratory, X-ray, and emergency services, that may be

 provided through a health maintenance organization or other private or public

 organization, other than medical assistance under chapter 32 of the Texas Human

 Resources Code.

          "Reasonable cost" means the total cost of health insurance coverage for all

 children for which Andy I. Weiner is responsible under a medical support order that

does not exceed 9 percent of Andy I. Weiner 's annual resources, as described by

section 154.062(b) of the Texas Family Code.

          "Reasonable and necessary health-care expenses not paid by insurance

and incurred by or on behalf of a child" include, without limitation, any copayments

for office visits or prescription drugs, the yearly deductible, if any, and medical,

surgical, prescription drug, mental health-care services, dental, eye care,

ophthalmological, and orthodontic charges.           These reasonable and necessary

health-care expenses do not include expenses for travel to and from the

health-care provider or for nonprescription medication.

          "Furnish" means:




Weiner ·Agreed Final Decree of Divorce                           Page 24
     ''


                 a.     to hand deliver the document by a person eighteen years of age

                        or older either to the recipient or to a person who is eighteen

                        years of age or older and permanently resides with the

                        recipient;

                 b.     to deliver the document to the recipient by certified mail, return

                        receipt requested, to the recipient's last known mailing or

                        residence address; or

                c.     to deliver the document to the recipient at the recipient's last

                       known mailing or residence address using any person or entity

                       whose principal business is that of a courier or deliverer of

                       papers or documents either within or outside the United States.

          3.    Findings on Health Insurance Availability- Having considered the

cost, accessibility, and quality of health insurance coverage available to the

parties, the Court finds:

          Health insurance is available or is in effect for the children through Andy I.

Weiner's employment or membership in a union, trade association, or other

organization at a reasonable cost.

          IT IS FURTHER FOUND that the following orders regarding health-care

coverage are in the best interest of the children.

          4.    Provision of Health-Care Coverage -




Weiner- Agreed Final Decree of Divorce                        Page 25
           .\




                 As additional child support, through four (4) months past high school

         graduation for each child and for so long as child support is payable for a child,

        Andy I. Weiner is ORDERED to provide health insurance for each such child with a

        deductible of no more than $1 ,000.00 per year, per child, and if it is higher, as child

        support, Andy I. Weiner is ORDERED to pay 100% of all deductible amounts to a

        point where such deductible amount reaches that level.            For example, if the

        deductible for the children is $7,500, Andy I. Weiner shall pay 100% of the fist

        $6,500 in uninsured health care expenses of the children.

                Beginning on the first day of the first month following the rendition of the

        divorce, and pursuant to section 154.183© of the Texas Family Code, IT IS

        ORDERED that the reasonable and necessary uninsured medical expenses of the

        children be paid as follows:

                a.    Andy I. Weiner shall be responsible for payment of 70% of each

        child's deductible;

                b.   after the deductible has been met, Katherine F. Weiner shall pay for

        30% and Andy I. Weiner shall pay for 70% of all uninsured health care expenses
 ~




'"'t>   for each child's health care not covered by the children's health insurance policy.
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  ~             c.   Notwithstanding the foregoing, any uninsured health care expenses
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"'~"'   not applied toward the deductible shall be paid 30% by Katherine F. Weiner and
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        70% by Andy I. Weiner.




                     Weiner- Agreed Final Decree of Divorce
         ..        ''


                        d.     Unless approved in advance by both parents, any party incurring out

               of network expenses, except in the case of a medical emergency, shall pay 100%

               of such expense.

                        Andy I. Weiner is ORDERED to continue to maintain health insurance for

               each child who is the subject of this suit that covers basic health-care services,

               including usual physician services, office visits, hospitalization, and laboratory,

               X-ray, and emergency services.

                        Andy I. Weiner is ORDERED to maintain such health insurance in full force

               and effect on each child who is the subject of this suit as long as child support is

               payable for that child.        Andy I. Weiner is ORDERED to convert any group

               insurance to individual coverage or obtain other health insurance for each child

              within fifteen days of termination of his employment or other disqualification from

              the group insurance. Andy I. Weiner is ORDERED to exercise any conversion

              options or acquisition of new health insurance in such a manner that the resulting

              insurance equals or exceeds that in effect immediately before the change.

                        Andy I. Weiner is ORDERED to furnish Katherine F. Weiner a true and
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 «;           correct copy of the health insurance policy or certification and a schedule of
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 £"           benefits within 10 days of the signing of this order. Andy I. Weiner is ORDERED
     '
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"'ki          for use of the insurance within 10 days of the signing of this order. Andy I. Weiner
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              Weiner -Agreed Final Decree of Divorce                    Page 27
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           is ORDERED to provide, within three days of receipt by him, to Katherine F:

          Weiner any insurance checks, other payments, or explanations of benefits relating

          to any medical expenses for the children that Katherine F. Weiner paid or incurred.

                   Pursuant to section 1504.051 of the Texas Insurance Code, IT IS

          ORDERED that if Andy I. Weiner is eligible for dependent health coverage but fails

          to apply to obtain coverage for the children, the insurer shall enroll the children on

          application of Katherine F. Weiner or others as authorized by law.

                  The party who incurs a health-care expense on behalf of a child is

          ORDERED to submit to the other party all forms, receipts, bills, statements, and

          explanations of benefits reflecting the uninsured portion of the health-care

          expenses within thirty days after he or she receives them. The nonincurring party

          is ORDERED to pay his or her percentage of the uninsured portion of the

         health-care expenses either by paying the health-care provider directly or by

         reimbursing the incurring party for any advance payment exceeding the incurring

         party's percentage of the uninsured portion of the health-care expenses within

         thirty days after the nonincurring party receives the forms, receipts, bills,

         statements, and explanations of benefits.

                  These provisions apply to all unreimbursed health-care expenses of any

         child who is the subject of this suit that are incurred while child support is payable

   ii
 ..0
         for that child .
 ~
 il
 ~0
q        Weiner- Agreed Final Decree of Divorce                     Page 28
'"d

"''1"1
u
         5.      Secondary Coverage- IT IS ORDERED that if a party provides

 secondary health insurance coverage for the children, both parties shall cooperate

 fully with regard to the handling and filing of claims with the insurance carrier

 providing the coverage in order to maximize the benefits available to the children

 and to ensure that the party who pays for health-care expenses for the children is

 reimbursed for the payment from both carriers to the fullest extent possible.



         6.     Compliance with Insurance Company Requirements - Each party is

 ORDERED to conform to all requirements imposed by the terms and conditions of

 the policy of health insurance covering the children in order to assure maximum

reimbursement or direct payment by the insurance company of the incurred

health-care expense, including but not limited to requirements for advance notice

to any carrier, second opinions, and the like. Each party is ORDERED to attempt

to use "preferred providers," or services within the health maintenance

organization, if applicable; however, this provision shall not apply if emergency

care is required.      Disallowance of the bill by a health insurer shall not excuse the

obligation of either party to make payment; however, if a bill is disallowed or the

benefit reduced because of the failure of a party to follow insurance procedures or

requirements, IT IS ORDERED that the party failing to follow the insurance

procedures or requirements shall be wholly responsible for the increased portion




Weiner - Agreed Final Decree of Divorce                      Page 29
 of that bill.

         IT IS FURTHER ORDERED that no surgical procedure, other than in an

 emergency or one covered by insurance, shall be performed on the child unless

 the parent consenting to surgery has first consulted with at least two medical

 doctors, both of whom state an opinion that the surgery is medically necessary. IT

 IS FURTHER ORDERED that a parent who falls to obtain the required medical

 opinions before consent to surgery on the child shall be wholly responsible for all

 medical and hospital expenses incurred in connection therewith and not covered

 by insurance.

        7.       Claims- Except as provided in this paragraph, the party who is not

· carrying the health insurance policy covering the children is ORDERED to furnish

to the party carrying the policy, within thirty days of receiving them, any and all

forms, receipts, bills, and statements reflecting the health-care expenses the party

not carrying the policy incurs. on behalf of the children.   In accordance with section

1204.251 and 1504.055(a) of the Texas Insurance Code, IT IS ORDERED that the

party who is not carrying the health insurance policy covering the children, at that

party's option , may file any claims for health-care expenses directly with the

insurance carrier with and from whom coverage is provided for the benefit of the

children and receive payments directly from the insurance company.         Further, for

the sole purpose of section 1204.251 of the Texas Insurance Code, Katherine F.




Weiner - Agreed Final Decree of Divorce                      Page 30
 Weiner is designated the managing conservator or possessory conservator of the

 children.

         The party who is carrying the health insurance policy covering the children is

 ORDERED to submit all forms required by the insurance company for payment or

 reimbursement of health-care expenses incurred by either party on behalf of a

 child to the insurance carrier within fifteen days of that party's receiving any form,

 receipt, bill, or statement reflecting the expenses.

         8.     Constructive Trust for Payments Received- IT IS ORDERED that any

 insurance payments received by a party from the health insurance carrier as

·reimbursement for health-care expenses incurred by or on behalf of a child shall

 belong to the party who paid those expenses.       IT IS FURTHER ORDERED that

the party receiving the insurance payments is designated a constructive trustee to

receive any insurance checks or payments for health-care expenses paid by the

other party, and the party carrying the policy shall endorse and forward the checks

or payments, along with any explanation of benefits received, to the other party

within three days of receiving them.

        9.     WARNING - A PARENT ORDERED TO                    PROVIDE      HEALTH

INSURANCE OR TO PAY THE OTHER PARENT ADDITIONAL CHILD

SUPPORT FOR THE COST OF HEALTH INSURANCE WHO FAILS TO DO SO

IS LIABLE FOR NECESSARY MEDICAL EXPENSES OF THE CHILDREN,




Weiner- Agreed Final Decree of Divorce                     Page 31
       ..

             WITHOUT REGARD TO WHETHER THE EXPENSES WOULD HAVE BEEN

             PAID IF HEALTH INSURANCE HAD BEEN PROVIDED, AND FOR THE COST

             OF HEALTH INSURANCE PREMIUMS OR CONTRIBUTIONS, IF ANY, PAID ON

             BEHALF OF THE CHILDREN.

              Miscellaneous Child Support Provisions

             Support as Obligation of Estate

                    IT IS ORDERED that the provisions for child support in this decree shall be

             an obligation of the estate of Andy I. Weiner and shall not terminate on the death of

            Andy I. Weiner.        Payments received for the benefit of the children, including

             payments from the Social Security Administration, Department of Veterans Affairs

            or other governmental agency or life insurance proceeds, annuity payments, trust

            distributions, or retirement survivor benefits, shall be a credit against this

            obligation. Any remaining balance of the child support is an obligation of Andy I.

            Weiner's estate.

            Termination of Orders on Remarriage of Parties but Not on Death of Obligee

                    The provisions of this decree relating to current child support terminate on
  ~


 "
 ~          the remarriage of Katherine F. Weiner to Andy I. Weiner unless a nonparent or
 "'
 "'~        agency has been appointed conservator of the children under chapter 153 of the
  '
 <n
 "'~        Texas Family Code. An obligation to pay child support under this decree does not
 00
 ~
 <n
  li        terminate on the death of Katherine F. Weiner but continues as an obligation to
 .D
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 ~
Q
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            Weiner -Agreed Final Decree of Divorce                    Page 32
"3
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r'       ·"'•




       David A. Weiner, DanielS. Weiner and Michael H. Weiner.

       Information Regarding Parties

                The information required for each party by section 105.006(a) of the Texas

      Family Code is as follows:

                Name:                                        Katherine F. Weiner
                Social Security number:        xxx-xx-x324
                Driver's license number:                               xxxxx616
                                                                       Issuing     state:
                                                                       Texas
                Current residence address:     8719 Stablecrest, Houston, TX 77024
                Mailing address:                    8719 Stablecrest, Houston, TX 77024
                Home telephone number:         832-725-4340
                Name of employer:              N/A




     Weiner • Agreed Final Decree of Divorce                     Page 33
         Address of employment:          N/A
         Work telephone number:          N/A

         Name:                                         Andy I. Weiner
         Social Security number:         xxx-xx-x888
         Qriver's license number                                  xxxxx486
                                                                  Issuing      state:
                                                                  Texas
         Current residence address:       1200 Post Oak Blvd., Apt. 907, Houston, TX
                                         77056
         Mailing address:                            1200 Post Oak Blvd., Apt. 907,
                                         Houston, TX 77056
        Home telephone number:           832 816 4666
        Name of employer:                Weiner Development
        Address of employment:           520 North Post Oak Blvd., Houston, Texas
        Work telephone number:           (713) 623-0188

 EACH PERSON WHO IS A PARTY TO THIS ORDER IS ORDERED TO NOTIFY

 EACH OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY OF

ANY CHANGE IN THE PARTY'S CURRENT RESIDENCE ADDRESS, MAILING

ADDRESS, HOME TELEPHONE NUMBER, NAME OF EMPLOYER, ADDRESS

OF EMPLOYMENT, DRIVER'S LICENSE NUMBER, AND WORK TELEPHONE

NUMBER. THE PARTY IS ORDERED TO GIVE NOTICE OF AN INTENDED

CHANGE IN ANY OF THE REQUIRED INFORMATION TO EACH OTHER

PARTY, THE COURT, AND THE STATE CASE REGISTRY ON OR BEFORE

THE 60TH DAY BEFORE THE INTENDED CHANGE. IF THE PARTY DOES

NOT KNOW OR COULD NOT HAVE KNOWN OF THE CHANGE IN SUFFICIENT

TIME TO PROVIDE 60-DAY NOTICE, THE PARTY IS ORDERED TO GIVE

NOTICE OF THE CHANGE ON OR BEFORE THE FIFTH DAY AFTER THE



Weiner -Agreed Final Decree of Divorce                     Page 34
                                                                                    I
••      ..!....




      DATE THAT THE PARTY KNOWS OF THE CHANGE.

      THE DUTY TO FURNISH THIS INFORMATION TO EACH OTHER PARTY, THE

      COURT, AND THE STATE CASE REGISTRY CONTINUES AS LONG AS ANY

      PERSON, BY VIRTUE OF THIS ORDER, IS UNDER AN OBLIGATION TO PAY

      CHILD SUPPORT OR ENTITLED TO POSSESSION OF OR ACCESS TO A

      CHILD.

      FAILURE BY A PARTY TO OBEY THE ORDER OF THIS COURT TO PROVIDE

      EACH OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY WITH

      THE CHANGE IN THE REQUIRED INFORMATION MAY RESULT IN FURTHER

      LITIGATION TO ENFORCE THE ORDER, INCLUDING CONTEMPT OF COURT.

     A FINDING OF CONTEMPT MAY BE PUNISHED BY CONFINEMENT IN JAIL

     FOR UP TO SIX MONTHS, A FINE OF UP TO $500 FOR EACH VIOLATION,

     AND A MONEY JUDGMENT FOR PAYMENT OF ATTORNEY'S FEES AND

     COURT COSTS.

     Notice shall be given to the other party by delivering a copy of the notice to the

     party by e-mail correspondence to the party's e-mail address. Notice shall be given

     to the Court by delivering a copy of the notice either in person to the clerk of this

     Court or by registered or certified mail addressed to the clerk at 1115 Congress,

     Houston, Texas 77002. Notice shall be given to the state case registry by mailing a

     copy of the notice to State Case Registry, Contract Services Section, MC046S,




     Weiner -Agreed Final Decree of Divorce                    Page 35
•


     P.O. Box 12017, Austin, Texas 78711-2017.

     NOTICE TO ANY PEACE OFFICER OF THE STATE OF TEXAS: YOU MAY

     USE REASONABLE EFFORTS TO ENFORCE THE TERMS OF CHILD

    CUSTODY SPECIFIED IN THIS ORDER. A PEACE OFFICER WHO RELIES

    ON THE TERMS OF A COURT ORDER AND THE OFFICER'S AGENCY ARE

    ENTITLED TO THE APPLICABLE IMMUNITY AGAINST ANY CLAIM, CIVIL OR

    OTHERWISE,        REGARDING           THE   OFFICER'S     GOOD       FAITH   ACTS

    PERFORMED IN THE SCOPE OF THE OFFICER'S DUTIES IN ENFORCING

    THE TERMS OF THE ORDER THAT RELATE TO CHILD CUSTODY.                         ANY

    PERSON WHO KNOWINGLY PRESENTS FOR ENFORCEMENT AN ORDER

    THAT IS INVALID OR NO LONGER IN EFFECT COMMITS AN OFFENSE THAT

    MAY BE PUNISHABLE BY CONFINEMENT IN JAIL FOR AS LONG AS TWO

    YEARS AND A FINE OF AS MUCH AS $10,000.

    WARNINGS TO PARTIES: FAILURE TO OBEY A COURT ORDER FOR CHILD

    SUPPORT OR FOR POSSESSION OF OR ACCESS TO A CHILD MAY RESULT

    IN   FURTHER     LITIGATION          TO   ENFORCE   THE     ORDER,    INCLUDING

    CONTEMPT OF COURT. A FINDING OF CONTEMPT MAY BE PUNISHED BY

    CONFINEMENT IN JAIL FOR UP TO SIX MONTHS, A FINE OF UP TO $500 FOR

    EACH VIOLATION, AND A MONEY JUDGMENT FOR PAYMENT OF

    ATTORNEY'S FEES AND COURT COSTS.




Weiner- Agreed Final Decree of Divorce                        Page 36
        ,_,      '"· l




               FAILURE OF A PARTY TO MAKE A CHILD SUPPORT PAYMENT TO THE

               PLACE AND IN THE MANNER REQUIRED BY A COURT ORDER MAY RESULT

               IN THE PARTY'S NOT RECEIVING CREDIT FOR MAKING THE PAYMENT.

               FAILURE OF A PARTY TO PAY CHILD SUPPORT DOES NOT JUSTIFY

               DENYING THAT PARTY COURT-ORDERED POSSESSION OF OR ACCESS

               TO A CHILD.         REFUSAL BY A PARTY TO ALLOW POSSESSION OF OR

               ACCESS         TO    A    CHILD         DOES   NOT   JUSTIFY   FAILURE   TO   PAY

               COURT-ORDERED CHILD SUPPORT TO THAT PARTY.

               Change of Petitioner's Name

                         IT IS ORDERED AND DECREED that Katherine F. Weiner's name is

              changed to Katherine Rose Warren.

              Court Costs

                         IT IS ORDERED AND DECREED that costs of court are to be borne by the

              party who incurred them.

              Resolution of Temporary Orders

                         IT IS ORDERED AND DECREED that Petitioner and Respondent are
 ,_
 ~


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    0
 ,.__         discharged from all further liabilities and obligations imposed by the temporary
 '~

 ~
11<·          order of this Court rendered on August 24, 2011, except as otherwise stated herein
 '
on
a,
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              with regard to provisions for sale of the home.
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 t            Discharge from Discovery Retention Requirement
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A             Weiner- Agreed Final Decree of Divorce                      Page 37
;;
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...

             IT IS ORDERED AND DECREED that the parties and their respective

      attorneys are discharged from the requirement of keeping and storing the

      documents produced in this case in accordance with rule 191.4(d) of the Texas

      Rules of Civil Procedure.

       Decree Acknowledgment

             Petitioner, Katherine F. Weiner, and Respondent, Andy I. Weiner, each

      acknowledge that before signing this Final Decree of Divorce they have read this

  · Final Decree of Divorce fully and completely, have had the opportunity to ask any

      questions regarding the same, and fully understand that the contents of this Final

      Decree of Divorce constitute a full and complete resolution of this case.   Petitioner

      and Respondent acknowledge that they have voluntarily affixed their signatures to

      this Final Decree of Divorce, believing this agreement to be a just and right division

      of the marital debt and assets, and state that they have not signed by virtue of any

      coercion, any duress, or any agreement other than those specifically set forth in

      this Final Decree of Divorce.

      Indemnification

            Each party represents and warrants that he or she has not incurred any

  outstanding debt, obligation, or other liability on which the other party is or may be

  liable, other than those described in this decree.        Each party agrees and IT IS

  ORDERED that if any claim, action, or proceeding is hereafter initiated seeking to




  Weiner -Agreed Final Decree of Divorce                         Page 38
 hold the party not assuming a debt, an obligation, a liability, an act, or an omission

 of the other party liable for such debt, obligation, liability, act or omission of the

 other party, that other party will, at his or her sole expense, defend the party not

 assuming the debt, obligation, liability, act, or omission of the other party against

 any such claim or demand, whether or not well founded, and will indemnify the

 party not assuming the debt, obligation, liability, act, or omission of the other party

 and hold him or her harmless from all damages resulting from the claim or

 demand.

 Damages, as used in this provision, includes any reasonable loss, cost, expense,

 penalty, and other damage, including without limitation attorney's fees and other

 costs and expenses reasonably and necessarily incurred in enforcing this

indemnity.

        IT IS ORDERED that the indemnifying party will reimburse the indemnified

party, on demand, for any payment made by the indemnified party at any time after

the entry of the divorce decree to satisfy any judgment of any court of competent

jurisdiction or in accordance with a bona fide compromise or settlement of claims,

demands, or actions for any damages to which this indemnity relates.

        The parties agree and IT IS ORDERED that each party will give the other

party prompt written notice of any litigation threatened or instituted against either

party that might constitute the basis of a claim for indemnity under this decree.




Weiner- Agreed Final Decree of Divorce                      Page 39
            ·'t       ....




                   Clarifying Orders

                             Without affecting the finality of this Final Decree of Divorce, this Court

                   expressly reserves the right to make orders necessary to clarify and enforce this

                   decree.

                   Relief Not Granted

                             IT IS ORDERED AND DECREED that all relief requested in this case and

                   not expressly granted is denied. This is a final judgment, for which let execution

                   and all writs and processes necessary to enforce this judgment issue.          This

                  judgment finally disposes of all claims and all parties and is appealable.

                   Date of Judgm:J            L L _,
                  SIGNED on       -fZl-?1f ~f:.Z----(7~
                                                      1

                                                                                            -
                                                                                        )
                              JIL!D
                                lrh\f~Mk
                              . MAR 2. 9 2012
                      Time:              ,2,.\Lf~Ptr\
                                Han13 County, roxas
                      ~                   ALS'
                                     Deputy


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~                 Weiner -Agreed Final Decree of Divorce                     Page 40
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........,..._

     APPROVED AS TO FORM ONLY:

     FULLENWEIDER WILHITE
     4265 San Felipe Street
     Suite 1400
     Houston, Texas 77027
     Tel: (713) 624-4100
     Fax: (713) 624-4141    1




     By•Ra~~
           Attorney for Katherine F. Weiner
           State Bar No. 21476400


    JENKINS KAMIN, LLP
    Two Greenway Plaza, Suite 600
    Houston, Texas 77046
    713-600-5500 Telephone
    713-600-     Telefa


    By: _         _;~~'Z;.~~---
                Joan . Jenkm~­
                Attorney for Andy I. Weiner
                State Bar Number 10621900


    APPROVED AND CONSENTED TO
    AS TO BOTH FORM AND SUBSTANCE:




   Weiner -Agreed Final Decree of Divorce     Page 41
      I, Chris Daniel, District Clerk of Hanis
      County, Texas cettify that this is a true and
      conect copy of the miginal record filed and or
      recorded in my office, electronically or hard
      copy, as it appears on this date.
      Witness my official hand and seal of office
      this April4, 2012


      Certified Document Number:       51817895 Total Pages: 41




      Chris Daniel, DISTRICT CLERK
      HARRIS COUNTY, TEXAS




In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com
                                                     Exhibit C




                                       No. _ _ _ _ _ __

 INRE:                                               §           INTHEPROBATECOURT
                                                     §
                                                     §           NO. _ _ _ _ __
 I>AVID ABRAHAM WEINER                               §
 1994 TRUST                                          §           ~SCOUNT~TEXAS



                          AFFIDAVITOFKATHERINEF. WARREN

        Before me, the undersigned notary, on this ·day personally appeared KATHERINE F.

WARREN, the affiant, whose identity is known to me. After I administered an oath, affiant

iestified as follows:·

   1. My name is Katherine F. Warren. I am over eighteen years of age, of ~ound mind, and

        capable of making this affidavit. The facts stated in this affidavit are within my personal

       knowledge and are true and correct.

   2. On December 13, 1994, Andy I. Weiner and I created the DAVID ABRAHAM WEJNER

       1994 TRUST (the "Trust") for the benefit of our son, David W. Warren, formerly known

      as David A. Weiner. Andy I. Weiner and I are the trustors and co-trustees of the Ttust.

  3. The purpose of the Trust is to provide for the best interests of our son, David. A primary

      purpose of the Trust is to fund his educational costs. I believe that it is in David's best

    . interest to receive a quality education.

 4. David is enrolled as a freshman at Rice University in Houston, Texas.             He began

     attending classes in August 2013.

5. Andy I. Weiner and I were granted a divorce on March 29, 2012. As part of the divorce

    decree, the trust was to continue as provided under the trust agreement. Under the trust

    agreement, Andy I. Weiner and I are required to act jointly as co-trustees.


                                                 1
     6. Although David is the primary beneficiary of the Trust, he applied for fmancial aid with

         Rice University prior to the start of the Fall 2013 semester. David was denied fmancial

         aid because of the Trust. The financial aid department of Rice University explained that

        where students are the beneficiaries of trusts like the DAVID ABRAHAM WEINER

        1994 TRUST, that the school assumes that the trust funds are intended for the payment of

        college expenses.

    7. David received a tuition bill from Rice University in July 2013. I wrote a check from the

       Trust's Fidelity account for $20,000 or around August 1, 2013. The check was returned

       to Rice University unpaid because Andy I. Weiner requested that Fidelity not honor the

       check.

   8. After the check was returned to Rice University unpaid, David received a letter from the

      university advising him that his tuition payment was overdue. I requested that Fidelity

      wire $20,000 to David, with which he paid his tuition. It took approximately six weeks

      for the tuition payment to be credited to David's account with Rice University.

  9. I believe that it is detrimental to the best interests of David for Andy I. Weiner and I to

     continue acting as co-trustees of the Trust. Our disagreements regarding distributions of

     David's behalf could seriously inhibit his ability to receive a wonderful educatio!J .

. 10. David is an intelligent adult and is capable of using the Trust assets for his best interests.

     I believe that David has shown maturity beyond most otber college students his age. It

    would be in his best interests to be given the Tlust assets for his college tuition, rather

    than to face the uncetiaintyinherent in the current situation.




                                           ' 2
Sworn to and subscribed before me by Katherine F. Warren on   q ·3 ()   _ _ 2013.




                      ANGIE K BYRNES
                   My Commission Expires
                    Seplembor 16. 2015




                                           3
         HARRIS COUNTY PROBATE COQRT NUMBER FOUR
                              FAX (713) 368-7111
                            PI-lONE (713) 368-6767
                                FAX TRANSMISSION




To:       Sarah Patel Pacheco
          Via facsimile 713-658-1921

To:       Carol Cantrell
          Via facsimile 713-333-0550

Re:      In Re: Michael Henry Weiner 2000 Trust; Cause No. 425578; In Probate
         Court No. 4; Harris County, Texas
         In Re: Daniel Stephen Weiner 1996 Trust; Cause No. 425576; In Probate
         Court No. 4; Harris County, Texas

Date:    11-21-13

Pages:   5

Note:    See attached signed Orders.




                                                                          EXHIBIT
                                                                                    exhibitsticker.com




                                                                            TAB I
                                                 NO. 425,578

   INRE:                                              §                   IN PROBATE COURT
                                                      §
   MICHAEL HENRY WETNER                               §                   NUMBER FOUR (4) OF
                                                      §
   :2000 TRUST                                        §                   HARRIS COUNTY, TEXAS

                              ORDER ON PLEA TO THE .JURISDICTION

              On this day, the Court considered the Plea to the Jurisdiction, filed by Defenda11t Andy

  Weiner, co-trustee ofthc Michac.l Henry Weiner 2000 Trust, and after considering the pleadings,

  evidence ~nd arguments of counse.l, the Court fi.nds that the Plea to the Jurisdiction should be

  GRANTED in its entirety. It is thereJllre,

              ORDERED that the Plea to the Jurisdiction is GRANTED in its entirety. It is fu.rther,

             ORDERED that, due to jurisdictional defects, this ca~e is dismissed.




             Signed this --~<-=-1_day of _}')olfCmb<.1=-_,, 2013.



                                                          ~~--"'"'
                                                          JUDGE PRESIDING




077)44/flOIIOO I
376- 9S<19Wiv1
  APPROVED AS TO FORM:

  CRAIN, CATON & .TAMES, P.C.



  By:
        -=-sA~R-:-A--:-.H-:-1' ATEL PACT-IECO
        (TBA #00788164)
        KATHLEEN TANNER BEDU7.E
        (TBA #24052205)
        1401 McKinney, Suite 1700
        Houston, Texas 77010
        (713) 658-2323
        Facsimile (713) 658-1921

 ATTORNEYS FOR ANDY WEINER




                                                2
017)44/000001
376 • 9;4996vl
                                                NO. 425,576

   IN RE:                                             §                   TN PROBATE COURT
                                                      §
   DANIEL STEPHEN WEINER                              §                   NUMBER FOUR ( 4) OF
                                                      §
   1996 TRUST                                         §                   HARRIS COUNTY, TEXAS

                              ORDER ON PLEA TO THE .JURlSOICTION

              On this day, the Court considered the Plea to the .lmisdietion, filed by Def<ondant Andy

   Weiner, co-tmstee of the Dm1icl Stephen Weiner 1996 Trust, and alter considering the pleadings,

 · evidence and arguments of counsel, the Court tinds that the Plea to the Jnrisdiction should be

  GRANTED in it' entirety. Jt is thereJ:ore,

             ORDERED that the Plea to the Jurisdiction is GRANTED in its entirety. His further,

             ORDERED that, due to jurisdictional defects, this case is di.smissed.



             Signed this ____d.L_ day of _A}~--' 2013.




077344/0IJIJOO I
:176 · 95499(wl
APPROVED AS TO FORM:

CRAJN, CATON & .TAMES, P.C.



Ry: __,____________.
    SARAH PATEL PACHECO
    (TBA #00788164)
    KATHLEEN TANNER BEDUZR
    (TBA #24052205)
    1401 McKinney, St1ite 1700
    Houston, Texas 77010
    (713) 658-2323
    Facsimile (713) 658-1921

ATTORNEYS FOR ANDY WEINER




                                 2
 077311•11000001
 376 · 9S499(wl
                                                                                                                FILED
                                                                                                 8/7/2014 7:07:36 AM
                                                                                                         Stan Stanart
                                                                                                         County Clerk
                                                                                                        Harris County




                                         No. 425,577

IN RE:                                       §              IN THE PROBATE COURT
                                             §
DAVID ABRAHAM WEINER                         §
 1994 TRUST                                  §
                                             §              NO. 4
and                                          §
                                             §
DANIEL W. WARREN,                            §
 PETITIONER-INTERVENOR                       §              HARRIS COUNTY, TEXAS



      PETITIONERS’ NOTICE OF NONSUIT AGAINST KATHERINE WARREN

David W. Warren and Daniel W. Warren, Petitioners, hereby give written notice to this Court
and to all parties to this suit that they are taking a nonsuit of their entire case against
Katherine Warren, Respondent, in Petitioner’s Second Amended Original Petition filed
March 13, 2014 and Petitioner’s Original Petition in Intervention filed April 22, 2014,
effective immediately on the filing of this notice on August 7, 2014.



                                           Respectfully submitted,

                                           CANTRELL & CANTRELL, PLLC


                                           By: /s/ Carol A. Cantrell

                                                 Carol A. Cantrell, Attorney for Petitioners
                                                 State Bar No.: 24043592
                                                 Meredith N. McIver
                                                 State Bar No.: 24078974
                                                 Cantrell & Cantrell, PLLC
                                                 3700 Buffalo Speedway, Suite 520
                                                 Houston, Texas 77098
                                                 Telephone: (713) 333-0555
                                                 Facsimile: (713) 333-0550
                                                 ccantrell@cctaxlaw.com



                                                                                           EXHIBIT
                                                                                                            exhibitsticker.com




                                                                                               TAB J
                              CERTIFICATE OF SERVICE

     I do hereby certify that a true and correct copy of the foregoing instrument has been

duly served by electronic delivery or facsimile on all parties and counsel of record indicated

below, on August 7, 2014.

Sarah Patel Pacheco
Kathleen Tanner Beduze
Crain Caton & James
Five Houston Center,
1401 McKinney, 17th Floor
Houston, TX 77010
spacheco@craincaton.com
713-658-1921 (facsimile)
ATTORNEY FOR RESPONDENT ANDY I. WEINER


Thomas R. Conner
Conner & Lindamood, P.C.
1221 Lamar, Suite 1010
Houston, TX 77010
tom@lawcl.com
713-654-8115 (facsimile)
ATTORNEY FOR RESPONDENT KATHERINE R. WARREN



                                                  /s/ Carol Cantrell
                                                  CAROL A. CANTRELL
                                             No. -125,577

    IN R.E:                                      §            IN T il E PROBATE COU RT
                                                 §
   OAVIO ABRAHAM WEINER                          §
    1994 TRUST                                   §
                                                 §            NO. -1
   and                                           §
                                                 §
   DAN IEL W. WARREN,                            §
    PETITIONER-INTERVENOR                        §            HARRIS COUNTY, T EXAS



                                             RELEASE
                                    w flfhl
  I, David W. Warren and Daniel$. Warren, release and discharge Katherine R. Warren. both
  individually and as Trustee, from any and all claims. demands. lawsuits. actions. and liabilities or
  responsibilities of whatsoever kind or nature, that would otherwise be imposed on the trustee and
  which may arise out of or in connection with the trusteeship of the David Abraham Weiner 1994
  Trust and the Daniel Steven Weiner 1996 Trust, including liability for any past violations.
  I have read and understand the facts and causes of action set forth in the pleadings styled In Re:
 David Abraham Weiner 1994 Trust and intend this release as a full and complete release in
 conformity with the provisions of Texas Property Code Section 114.005. I further understand
 that by signing this release, I voluntarily surrender certain legal rights.




                                                       Date




Daniel W. Warren                                       Date


Agreed 10 and accepted:




                                                       Date




                                                                                     KW00510
                                                                                                             FILED
                                                                                              4/22/2014 6:38:02 PM
                                                                                                      Stan Stanart
                                                                     PROBATE COURT 4                  County Clerk
                                                                                                     Harris County



                                          No. 425,577

       IN RE:                               §                IN THE PROBATE COURT
                                            §
       DAVID ABRAHAM WEINER                 §                NO. 4
                                            §
       1994 TRUST                           §                HARRIS COUNTY, TEXAS


                       ORIGINAL PETITION IN INTERVENTION

  Intervenor Daniel Steven Weiner (Daniel) respectfully files this Petition in Intervention. By

this filing, Daniel appears in this case as a plaintiff seeking removal of Andy I. Weiner as

Trustee of the Daniel Steven Weiner 1996 Trust and also seeking damages for breach of

fiduciary duty.

                                           PARTIES

    1. Intervenor Daniel S. Weiner is an individual and beneficiary of the Daniel Steven

 Weiner 1996 Trust (Daniel’s Trust). Daniel Weiner resides in Harris County, Texas at 1226

 Muirfield, Houston, TX 77055. The last three digits of intervenor’s driver’s license number

 are 996. The last three digits of Intervenor’s Social Security number are 039.

    2. Plaintiff, David W. Warren, is an individual and beneficiary of the David Abraham

 Weiner 1994 Trust (David’s Trust). David resides in Harris County, Texas at 1226 Muirfield,

 Houston, TX 77055. Plaintiff’s attorney Carol A. Cantrell, already has a copy of this petition

 because she also represents Intervenor, Daniel S. Weiner.

    3. Respondent, Andy I. Weiner, an individual, has appeared and answered. A copy of this

 petition will be forwarded to Sarah Patel-Pacheco, attorney of record for Respondent Weiner,

 at 1400 McKinney, 17th Floor, Houston, TX 77010.



                                                                                           EXHIBIT
                                                                                                           exhibitsticker.com




                                                1                                            TAB K
    4. Respondent Katherine R. Warren, an individual, has appeared and answered. A copy

 of this petition will be forwarded to Thomas R. Conner, attorney of record for Respondent

 Warren, Conner & Lindamood, P.C., 1221 Lamar, Suite 1010, Houston, TX 77010.


                                            VENUE

   5. Venue of this proceeding is proper in this Court pursuant to Texas Trust Code §

115.002(b).

                                  THE ORIGINAL LAWSUIT

    6. Plaintiff David W. Warren filed an Original Petition for Termination of Trust on

 September 30, 2013 seeking to terminate the David Abraham Weiner 1994 Trust.

 Respondents Andy I. Weiner and Katherine R. Warren were joined as necessary parties

 under Texas Property Code § 115.011 because they are trustees of the trust.

    7. On October 23, 2013, Respondent Weiner filed an answer to plaintiff’s original petition

 asserting a general denial as well as affirmative defenses of res judicata, collateral estoppel,

 the doctrine of unclean hands, and the terms of the trust.

    8. On November 1, 2013, plaintiff David Warren filed a First Amended Original Petition

 for Modification of Trust and sought to remove both trustees and appoint himself as trustee

 rather than to terminate the trust.

    9. On January 15, 2014 Respondent Warren filed an answer to plaintiff’s First Amended

 Original Petition for Modification of Trust and asserted a general denial.

    10. On March 13, 2014 David W. Warren filed his Second Amended Original Petition

 seeking to remove only Andy I. Weiner as trustee and obtain damages against Andy I.

 Weiner for breach of fiduciary duty by failing to prudently invest David’s Trust funds and

 borrowing substantially all of David’s Trust’s funds, which is expressly prohibited by the
Texas Trust Code § 113.052 and the terms of the trust instrument.

                       INTERVENOR’S INTEREST IN LAWSUIT

  11. Daniel S. Weiner has a justiciable interest in this lawsuit because he will be harmed if

the Court finds that Andy I. Weiner did nothing wrong by borrowing substantially all of the

funds from David’s Trust on April 9, 2009 for his own personal use and benefit while he was

trustee. Andy I. Weiner also borrowed substantially all of the funds from Daniel’s Trust on

the same day in the same transaction for Respondent Weiner’s his own personal use and

benefit without interest or collateral while he was trustee of Daniel’s Trust. The trust

instruments of both David’s Trust and Daniel’s Trust expressly prohibit borrowing by the

trustee.

  12. Daniel S. Weiner will also be harmed in this lawsuit if the Court finds that Andy I.

Weiner did nothing wrong by maintaining the assets of David’s Trust in cash for 3.5 years

while the Dow Jones Industrial Average, the S&P 500 Index, and the NASDAQ advanced by

72 to 203 percent during that time period. Andy I. Weiner also maintained the assets of

Daniel’s Trust in cash during that same time period.

  13. Daniel S. Weiner will also be harmed in this lawsuit if the Court finds that Andy I.

Weiner did nothing wrong by investing more than half of David’s Trust portfolio in Weiners

Stores, Inc. when the company had a history of bankruptcy and was ultimately sold for a

complete loss. Andy I. Weiner also invested over 65 percent of Daniel’s Trust portfolio in

Weiner Stores, Inc. during the same time period and sold the stock for a complete loss.

  14. Daniel S. Weiner will also be harmed in this lawsuit if the Court finds that Andy I.

Weiner did nothing wrong by failing to diversify David’s Trust portfolio and consequently

selling the stocks for a significant loss. Andy I Weiner also failed to diversify Daniel’s Trust



                                               3
Daniel’s Trust by investing in the same stocks (Autozone Inc., Kohls Corp, Lowes

Companies, Whole Foods Market, and 99 Cents Only Stores) as David’s Trust and selling

them at the same time for a loss of $30,586.

  15. Because Daniel Weiner challenges the very same transactions that David Warren is

already challenging, his claims arise from the same transactions or occurrences and involve

common questions of law and fact with David’s claims – namely, whether the actions of

Andy I. Weiner in failing to prudently invest the trust assets and borrowing nearly all of the

trust corpus for Respondent Weiner’s own benefit constitute breaches of fiduciary duty. The

outcome of David W. Warren’s case will substantially affect the interest of Daniel S. Weiner

because they complain of the same transactions by the same trustee during the same time

period pertaining to identical trusts with identical assets.

  16. A party has a justiciable interest in a lawsuit when its interests will be affected by the

litigation. {In re Union Carbide Corp., 273 S.W.3d 152, 155 (Tex. 2008); Law Offices of

Windle Turley, P.C. v. Ghiasinejad, 109 S.W.3d 68, 70 (Tex. App.—Fort Worth 2003, no

pet.).} A party may intervene in a suit if it could have brought all or part of the same suit in

its own name. {In re Union Carbide, 273 S.W.3d at 155; Guar. Fed. Sav. Bank v. Horseshoe

Operating Co., 793 S.W.2d 652, 657 (Tex. 1990); E & B Carpet Mills v. State, 776 S.W.2d

286, 290 (Tex. App.—Austin 1989, writ dism’d).}

                                             FACTS

  17. Intervenor Daniel S. Weiner is the beneficiary of the Daniel Steven Weiner 1996

Trust (Daniel’s Trust), an irrevocable inter vivos trust created by Respondents (trustors)

Warren and Weiner on March 20, 1996. A true and correct copy of the trust agreement is

attached hereto as “Exhibit A” and is incorporated for all purposes.
18.   Respondents Andy I. Weiner and Katherine R. Weiner, are Trustees of the Trust.

Respondent Weiner’s sister Bayle Weiner Drubel is successor trustee in the event that both

Respondents Weiner and Warren cease to serve.

19. Daniel S. Weiner was born on March 18, 1996 and is an adult.

20. The primary purpose of Daniel’s Trust is to pay for Daniel’s education. He is presently

a senior student at Kinkaid High School in Houston, Texas. He has accepted enrollment at

Rice University in Houston, Texas to attend classes in the fall of 2014.

21. Daniel’s Trust owns marketable securities worth approximately $124,983 as of January

31, 2014. The Trust assets came from various sources including Daniel’s own income tax

refunds, birthday and Hanukkah gifts, and checks payable to the Custodian of his Uniform

Gifts to Minors Account. Respondent Weiner “endorsed” these checks over to Daniel’s Trust

without Daniel’s knowledge.

22. The Trustee is authorized to make discretionary distributions to the beneficiary as are

in the beneficiary's best interest. The beneficiary may withdraw the entire Trust corpus upon

reaching age 21.

23. On March 25, 2009, Respondent Andy I. Weiner liquidated the entire portfolio of

Daniel’s Trust and incurred a capital loss of $30,586.

24. On April 9, 2009 Respondent Weiner borrowed $90,959.38 from Daniel’s Trust,

leaving $1,000 in the trust. On the same day Respondent Weiner borrowed $126,641.40 from

David’s Trust and $82,474.40 from his other son Michael Weiner’s trust, leaving only

$1,000 in each of those trusts. In all, Respondent borrowed $300,075.18 from his sons’ trusts

for his own personal use and benefit while he was trustee.




                                               5
25. On December 19, 2013, Daniel S. Weiner demanded an accounting of his trust under

Texas Trust Code § 113.151-152. Respondent Weiner has ignored his demand.

26. In 1999, Daniel’s Trust purchased 34,000 shares of Wieners Stores, Inc. stock, in

addition to the 18,000 shares it already owned. On August 31, 1999, Weiners Stores, Inc.

accounted for over 65 percent of Daniel’s Trust’s portfolio.

27. Respondent Weiner was an Executive Vice President of Weiner Stores, Inc. until 1995

when it declared Chapter 11 bankruptcy. Weiners Stores emerged from bankruptcy on

August 26, 1997 and filed for Chapter 11 bankruptcy again on October 16, 2000.

 28. On December 6, 2001, Daniel’s Trust sold 52,000 shares of Wieners Stores, Inc. for

2/10ths of a cent per share for a total loss of $28,762.44.

29. From July 1, 1999 to March 25, 2009 Daniel’s Trust invested in only five to eight

individual stocks in a portfolio worth less than $90,000.

30. From March 26, 2009 to September 11, 2012 Daniel’s Trust’s account at Fidelity

consisted entirely of cash. During this time the trust earned $99.13 of interest income, while

the Dow Jones Industrial Average increased by 72 percent, the S&P 500 Index increased by

79 percent, and the NASDAQ Composite increased by over 203 percent.

31. Daniel S. Weiner did not discover Respondent Weiner’s borrowing or failure to

prudently invest his Trust funds until discovery began in David Warren’s case. Daniel

Weiner was a minor when the borrowings and other breaches occurred. The period of

limitations does not begin to run against a person entitled to bring an action for breach of

fiduciary duty while the person is under 18 years of age. {Tex. Civ. Prac. & Rem. Code §§

16.001, 16.004.} Daniel S. Weiner became 18 on March 18, 2014 and is thus within the

limitations period for bringing this action.
                                   CAUSES OF ACTION

32. Daniel S. Weiner incorporates by reference each and every allegation contained in the

preceding paragraphs as if fully set forth herein.

33. There is a real and justiciable controversy between Daniel S. Weiner and Respondent

Andy I. Weiner concerning Respondent Weiner’s actions as trustee of Daniel’s Trust.

34. Respondent Weiner has materially breached his fiduciary duties in the following

manner:

      a.         By borrowing substantially all of the assets of Daniel’s Trust for his own

  personal use and benefit on April 9, 2009 without interest or collateral in violation of

  Paragraph E-3(a) of the Trust Agreement and the Texas Trust Code § 113.052, both of

  which expressly forbid borrowing by the trustee;

      b.         By commingling substantially all of Daniel’s Trust assets with Respondent

  Weiner's own personal funds in violation of the duty of loyalty under Texas Trust Code §

  117.007, the duty not to profit by self-dealing with the trust under Texas Trust Code §

  114.0001(a), and the common law duty to segregate trust assets;

      c.         By investing over 65 percent of Daniel’s Trust assets in Weiner Stores, Inc. in

  1999, resulting in a material loss to the trust in violation of the prudent investor rule under

  Texas Trust Code § 117.004;

      d.         By failing to properly diversify Daniel’s Trust property resulting in a material

  loss to the trust in violation of the duty to diversify under Texas Trust Code § 117.005;

      e.         By failing to prudently invest Daniel’s Trust property resulting in a material

  loss to the trust in violation of the prudent investor rule under Texas Trust Code § 117.004;




                                                7
       f.         By failing to render an accounting despite written demand by Daniel S.

    Weiner on December 19, 2013 in violation of the duty to account under Texas Trust Code

    §§ 113.151 and 113.152.

   Daniel and his trust have suffered substantial economic damages as a direct result of

Respondent Weiner’s material breaches of fiduciary duty enumerated above.

  35. Daniel Weiner further claims that Respondent Weiner’s sister, Bayle Weiner Drubel,

 should not be named as successor trustee in the event Respondents are unable to serve

 because she has a material conflict of interest with respect to this Trust due to her

 relationship with Respondent Weiner. As a result of her conflict, Ms. Drubel would not be

 capable of properly performing her fiduciary duties. {Kappus v. Kappus, 284 S.W.3d 831

 (Tex. 2009)}.

                                  RELIEF REQUESTED

WHEREFORE, Daniel S. Weiner requests:

  36. Judgment against Respondent Andy I. Weiner for a sum within the jurisdictional limits

 of the Court.

  37. Monetary relief of over $200,000 but not more than $1,000,000.

  38. Removal of Respondent Weiner as Trustee of the Daniel Steven Weiner 1996 Trust

 pursuant to Texas Trust Code §§ 114.008(a)(7) and 113.082;

  39. That Respondent Weiner be ordered to pay money or restore property to Daniel’s Trust

 equal to the trust’s lost profits caused by Respondent Weiner's borrowing, imprudent

 investing, and other breaches of fiduciary duty pursuant to Texas Trust Code §

 114.008(a)(3);
40. That Respondent Weiner be ordered to disgorge and pay to Daniel’s Trust any profit

he has made through his personal use of Daniel’s Trust funds under Texas Trust Code §

114.0001(a).

41. That Respondent Weiner be ordered to pay Daniel’s Trust punitive damages in excess

of the statutory cap due to Respondent Weiner's gross negligence and intentional and

conscious indifference to the rights of the beneficiaries under Texas Civ. Prac. & Rem. Code

§ 41.008.

42. That Daniel S. Weiner be awarded reasonable and necessary attorney fees, costs, and

expenses through trial and all appeals under applicable Texas law, including but not limited

to Texas Civ. Prac. & Rem. Code § 38.001 and Texas Trust Code §§ 114.064 and

113.151(a).

43. That Respondent Weiner be ordered to submit an accounting that meets the

requirements of Texas Trust Code § 113.152 and personally bear the cost of the accounting

pursuant to Texas Trust Code § 113.151.

44. That Daniel’s Trust be modified pursuant to Texas Trust Code § 112.054(a)(3) to

appoint Daniel Weiner as co-Trustee with Respondent Katherine Warren and remove Bayle

Weiner Drubel as the successor trustee in the event that Ms. Warren ceases to serve.

45. That Daniel S. Weiner and his trust be awarded prejudgment and postjudgment interest

as provided by law.




                                              9
                                          PRAYER

 WHEREFORE PREMISES CONSIDERED, Daniel S. Weiner prays that the Court grant the

 requested relief and such further relief to which Daniel S. Weiner and his trust are justly

 entitled.

                                           By:_/s/ Carol A. Cantrell
                                           Carol A. Cantrell, Attorney for Daniel S. Weiner
                                           Texas Bar No.: 24043592
                                           Meredith N. McIver
                                           Texas Bar No.: 24078974
                                           3700 Buffalo Speedway, Suite 520
                                           Houston, TX 77098
                                           Phone: 713-333-0555
                                           Fax: 713-333-0550




                              CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been duly served
by electronic service to counsel of record indicated below on this 22st day of April 2014.

Sarah Patel Pacheco
Kathleen Tanner Beduze
Crain Caton & James
Five Houston Center,
1401 McKinney, 17th Floor
Houston, TX 77010
spacheco@craincaton.com
713-658-1921 (facsimile)
ATTORNEY FOR RESPONDENT ANDY I. WEINER

Thomas R. Conner
Conner & Lindamood, P.C.
1221 Lamar, Suite 1010
Houston, TX 77010
tom@lawcl.com
713-654-8115 (facsimile)
ATTORNEY FOR RESPONDENT KATHERINE R. WARREN

By:_/s/ Carol A. Cantrell
                   DANIEL STEVEN WEINER 1996 TRUST

     By this trust agreement, Andy I . Weiner and Katherine Friedman
Weiner, husband and wife, both of Harris County, Texas, as
"trusters," establish the Daniel steven Weiner 1996 Trust for the
benefit of their son, Daniel steven Weiner ("Daniel"), born
March 11, 1996.   Trusters grant, assign and deliver to Andy I.
Weiner and Katherine Friedman Weiner, both of Harris County, Texas,
as "trustees," the property described in Attachment A. Attachment
A, which is captioned "Initial Contributions to the Daniel Steven
Weiner 1996 Trust," is incorporated by reference as a part of this
trust agreement.
     This trust agreement and the trusts established by it are
irrevocable.   No person shall have the right to revoke or amend
this trust agreement or any of its provisions. However, property
acceptable to the trustee may be added to any trust from time to
time in the future by trusters or by any other person (including
additions pursuant to the provisions of the last will of any
person).

     All references to "trustee" shall refer to the person or
persons then acting as such.
     A.    PRIMARY TRUST

A-1.   Distributions . The income of the trust may be accumulated
and retained, in whole or in part, or the trustee may distribute to
Daniel, from time to time, so much or all of the trust estate as,
in the trustee's discretion, is in Daniel's best interests.

A-2.   Termination.  Daniel may withdraw any part or all of the
trust estate within 60 days after he becomes age 21, and may
thereby terminate the trust as to the part withdrawn.    Exercise of
this withdrawal right shall be by one or more written instruments
delivered to the trustee within the 60-day period.    If or to the
extent that Daniel does not exercise this withdrawal right, the
trust shall continue until Daniel becomes age 30 or dies before
that age, at which time the trust estate shall be distributed:

     (a)    To Daniel.

     (b) If Daniel is not then living, to such one or more
persons, corporations or organizations (including Daniel's estate) ,
as Daniel appoints by a will which specifically refers to this
power of appointment.    If or to the extent that Daniel does not
effectively exercise this power of appointment, the trust estate
shall be distributed:

     (1)    To Daniel's descendants.
     (2)  If none of Daniel's descendants is then living, to
trustors' descendants.

                           EXHIBIT A
     ( 3} If none of trusters'       descendants   is   then living,   to
trusters' heirs.
A-3. Payment of Taxes.     If Daniel's will contains no contrary
directions, the trustee shall pay from the trust estate the entire
increment in taxes payable by reason of Daniel's death (including
any interest or penalties thereon} to the extent (if any} that the
total of such taxes is greater than would have been imposed if no
portion of the trust estate were taken into account in determining
such taxes.

     B.    CONTINGENT TRUSTS
B-1. Trusts Established. Any portion of a trust estate upon the
trusts termination (other than a portion withdrawn by Daniel
pursuant to Paragraph A-2} which would be distributable to a
beneficiary who is under age 30 or to a beneficiary who is under a
legal disability instead shall be distributed to the trustee of a
Contingent Trust (unless otherwise directed by the valid exercise
of a power of appointment} .       Each beneficiary's portion so
distributed shall be held and administered as the initial trust
estate of a separate trust for the beneficiary.      However, if a
Contingent Trust is already in existence for that beneficiary, any
additional portion to be distributed to the trustee of a Contingent
Trust for the beneficiary shall be added to the trust estate of the
existing contingent Trust.
B-2. Distributions.      The income of each Contingent Trust may be
accumulated and retained, in whole or in part, or the trustee may
distribute to the beneficiary for whom the trust was established,
from time to time, so much or all of the trust estate as, in the
trustee's discretion, is in the beneficiary's best interests.

B-3. Termination. Each Contingent Trust shall terminate when the
beneficiary for whom the trust was established has become age 30
and is under no legal disability or upon the beneficiary's earlier
death. Upon termination, the trust estate shall be distributed:

     (a)    To the beneficiary.

     (b)   If the beneficiary is not then living, to such one or
more persons, corporations or organizations as the beneficiary
appoints by a will which specifically refers to this power of
appointment.    If none of the beneficiary's descendants is then
living, this power may not be exercised in favor of the
benefici ary, the beneficiary's estate, the beneficiary's creditors
or the creditors of the beneficiary's estate. If or to the extent
that the beneficiary does not effectively exercise this power of
appointment, the trust estate shall be distributed:

     (1)   To the beneficiary's descendants.


                                  -2-
                               EXHIBIT A
     (2) If none of the beneficiary's descendants is then living,
to the descendants of the beneficiary's nearest ancestor who was
one of trustors• descendants and who has descendants then living.

     (3)  If none of these persons is then living, to trusters,
descendants.
     ( 4) If none of trustors • descendants    is then   living,   to
trustors• heirs.

       C.   DISTRIBUTIONS
c-1. Distributions to or for Beneficiaries. During the term of a
trust, any distribution to be made to a beneficiary from the trust
may be made (i) to the beneficiary, {ii) if the beneficiary is
under a legal disability or if the trustee determines that the
beneficiary is unable to properly manage his affairs, to a person
furnishing support, maintenance or education for the beneficiary or
with whom the beneficiary is residing, for expenditure on the
beneficiary's behalf, or (iii) to a custodian for a minor
beneficiary, as selected by the trustee, under the Uniform Gifts to
Minors Act of any state. Alternatively, the trustee may otherwise
apply all or a part of the distribution for the beneficiary • s
benefit. However, no such distribution shall be made to a trustor,
to any spouse of a trustor, or in any manner that discharges a
legal obligation {including an obligation of support) of a trustor
or any spouse of a trustor. Any distribution under this paragraph
shall be a full discharge of the trustee with respect thereto.

c-2.  Best Interests of Beneficiary.    In making distributions in
the "best interests" of a beneficiary, the trustee may consider the
age of the beneficiary, the costs of the beneficiary's support,
maintenance, education and comfort without regard to any other
resources available to the beneficiary for these purposes, the
effect of any distribution upon the income and transfer tax
liability of the beneficiary or of the trust, and any other factors
deemed relevant by the trustee.

       D.   OFFICE OF TRUSTEE

0-1.   Successor Trustee, Co-Trustee.  The following provisions
shall apply to each separate trust established under this trust
agreement:

      (a) Successor Trustee.  Should Andy I. Weiner or Katherine
Friedman Weiner cease to act as trustee, for any reason, the one
remaining shall continue to act as trustee.   Should both Andy I.
Weiner and Katherine Friedman Weiner cease to act as trustees, for
any reason, trustors appoint Bayle Weiner Drubel as successor
trustee.


                                    -3-
                                EXHIBIT A
     (b) Appointment of Successor Trustee by Trustee . At any time
after qualifying as trustee, any trustee may appoint a successor
trustee to act in his place, either immediately or in the future
upon any stated contingency, and may thereby supplement the
provisions of subparagraph (a).
      (c) Appointment of Successor Trustee by Beneficiaries. If at
any time there is no trustee acting and none has been appointed, a
majority of the beneficiaries (acting through the beneficiary's
natural or legal guardian or legal representative, in the case of
a beneficiary under a legal disability) who might then be entitled
to receive a distribution from the trust estate shall appoint a
successor trustee.
     (d)   Appointment of Co-Trustee.   The     trustee    (acting
unanimously if more than one) may appoint one or more co-trustees.
     (e) Who May Be Appointed. A successor trustee or co-trustee
may be any individual, bank or trust company and may be domiciled
anywhere.
      (f) Procedure for Appointment. Appointment shall be made by
written instrument filed with the trust records.          Any such
appointment may be changed or revoked prior to the date it becomes
effective.   Any such appointment may be limited in any manner
deemed advisable by the person making the appointment, including,
for example, restricting the power over distributions as necessary
to avoid the imposition of any tax upon the trust, the appointee or
the appointee's estate.
D-2. Resignation of Trustee. A trustee may resign from a trust
without the necessity of any court proceeding upon meeting these
conditions:
     (a) Notice. At least 30 days' written notice       (if not waived)
shall be given to each beneficiary who might then       be entitled to
receive a distribution from the trust estate. If a      beneficiary is
under a legal disability, notice shall be given to       (or waived by)
the beneficiary's natural or legal guardian.
     (b)   Accounting.   If and to the extent required by the
successor trustee, an accounting for the administration of the
trust shall be given to the successor trustee.      The successor
trustee shall be fully protected in relying upon such accounting.
D-3.   Rights and Liabilities.

       (a) Bond Not Required. No bond or other security shall be
       required of any trustee.

       (b)   Liabilities.   This agreement shall always be construed in


                                   -4-
                                EXHIBIT A
favor of the validity of any act by or omission of any trustee. A
trustee shall not be liable for any act or omission except in the
case of gross negligence, bad faith or fraud.     Specifically, in
assessing the propriety of any investment of a trust estate, the
overall performance of the entire trust estate shall be taken into
account.

     (c)  Compensation. Each trustee shall be entitled to receive
reasonable compensation for services actually rendered to a trust.

     E.   ADMINISTRATION

E-1. General Powers of Trustee. To carry out the trust purposes
but subject to any limitations stated elsewhere herein, the trustee
of each trust shall have the following powers, which may be
exercised free from court supervision, and which shall exist until
all of the trust estate has been distributed:

     (a)  Trust Estate. The trustee may invest and reinvest all or
any part of the trust estate in property of any description and may
retain as a part of the trust estate any property acquired at any
time and in any manner.   Specifically, and without regard to the
provisions of any applicable state law, the trustee may retain, or
invest and reinvest in, property unproductive of income, shares of
open or closed end investment trusts or companies, wasting assets,
and any other property, regardless of location and without regard
to any requirement of diversification as to kind or amount.

     (b)   Business Interests. The trustee may continue operation
of any business entity, in any business form, with all or any part
of the trust estate, and may reorganize or liquidate any such
entity at any time.

      (c) Transfers, Loans. The trustee may lease, sell, transfer,
or encumber in any manner (including with purchase money mortgages)
all or any part of the trust estate, and may loan or borrow money
in any manner (including by joint and several obligations) with or
without security. Subject to the provisions of Paragraph E-3(a),
the trustee may purchase assets from the estate of a trustor and
may loan funds to the estate of a trustor at such rate of interest
and with such security as the trustee determines to be in the best
interests of the current beneficiaries of the trust.

      (d) Dealings With Related Parties. The trustee may deal with
any person or entity regardless of any relationship or identity of
any trustee to or with that person or entity and may hold or invest
all or any part of the trust estate in common or undivided
interests with that person or entity.

     (e) Agents, Employees. The trustee may employ and compensate
agents and other employees ~nd may delegate to them any and all
discretions and powers.

                                -5-

                           EXHIBIT A
     (f) Partitions, Distributions. The trustee may partition all
or any part of any interest, may pay and receive such moneys or
properties as may be necessary to equalize differences, and in so
doing (i) may make any distribution of all or any part of the trust
estate in any manner (including composing shares differently) and
(ii) may evaluate any property, which valuation shall be binding on
all beneficiaries.
     (g)   Claims, Controversies.    The trustee may maintain and
defend any claim or controversy by or against the trust without the
joinder or consent of any beneficiary.
      (h)    Additional Powers. In addition, the trustee shall have
all rights, privileges and powers now or hereafter granted to
trustees in Texas, including those granted under the Texas Trust
Code.     Any subsequent legislation or regulation expanding or
limiting the rights, privileges and powers granted a trustee shall
apply to all trusts hereunder unless the trustee elects not to have
such legislation or regulation apply to a particular trust by a
written instrument filed with the trust records.       However, the
provisions made for the various beneficiaries under this trust
agreement are exclusive. Any statute that purports to enlarge the
class of beneficiaries to whom distributions may be made or the
purposes for which distributions may be made shall not apply to any
trust.    All trust powers may be exercised upon such terms as the
trustee deems advisable and may affect trust properties for any
length of time regardless of the duration of the trust. Generally,
and subject only to the terms of this trust agreement, the trustee
shall hold, manage, control, use, invest, reinvest, and dispose of
the trust estate to the same extent as if the trustee were the fee
simple owner thereof.
E-2.     Principal and Income Determinations.      The receipts,
disbursements and reserves of each trust may be allocated, on a
cash or accrual basis, between principal and income in the
trustee's discretion without regard to the provisions of any
statute.    To the extent the trustee does not exercise this
discretionary power, the provisions of the Texas Trust Code shall
control.
E-3.   Restrictions on the Exercise of Certain Powers.
      (a)  Dealings with Trust Estate. No power granted the trustee
shall be construed to enable any person to purchase, exchange, or
otherwise deal with or dispose of any trust estate for less than an
adequate consideration in money or money's worth or to authorize
loans to any person without adequate interest.      No part of any
trust estate may be (i) loaned to a trustor or to any spouse of a
trustor or (ii) applied to the payment of premiums on policies of
insurance on the life of a trustor or on the life of any spouse of
a trustor.

                                -6-
                           EXHIBIT A
      (b)  Distributions to or for Trustee. Any power to make
discretionary distributions to or for the benefit of a person who
is serving as trustee of a trust (including distributions to the
person's spouse and distributions in discharge of any legal
obligation of the person) shall be exercisable solely by the
trustee or trustees other than that person. If no other trustee is
then serving, such power shall not be exercisable.

E-4. Release and Delegations of Powers. Any power granted to a
trustee may be released, in whole or in part, temporarily or
permanently. Except as provided in Paragraph E-3, any such power
may be delegated, in whole or in part, temporarily or permanently,
to any other trustee then acting. A release or delegation shall be
by written instrument filed with the records of each trust to which
the release or delegation applies.
     F.   DEFINITIONS AND GENERAL PROVISIONS
F-1. Trust Estate.   "Trust estate" means all assets, however and
whenever acquired (including income and accumulated income), which
may belong to a trust at any given time.

F-2. Descendants. "Descendants" means the legitimate children of
the person or persons designated and the legitimate lineal
descendants of such children, and includes any person adopted
before becoming age 18 and the adopted person's descendants.      A
posthumous child shall be considered as living at the death of his
parent. Whenever a distribution is to be made to the descendants
of any person, the property to be distributed shall be divided into
as many equal shares as there are living children of the person and
deceased children of the person who left descendants who are then
living.  Each living child shall take one share and the share of
each deceased child shall be divided among his then living
descendants in the same manner.   "Trusters' descendants" includes
only those persons descended from both trustors.
F-3.   Heirs.   Any distribution to be made to the "heirs" of a
person shall be made to the individuals who would have inherited
the person's personal property if the person had died intestate at
the time the distribution is to be made, domiciled in Texas and not
married, under the laws of Texas in force on the effective date of
this trust agreement, with the shares of taking determined by those
laws. However, both trusters and any spouse of a trustor shall be
deemed to have died prior to the time that any such distribution is
to be made. A distribution to "trustors' heirs" shall be made to
the heirs of Andy I. Weiner.
F-4. Internal Revenue Code.    "Internal Revenue Code" means the
Internal Revenue Code of 1986, as amended, or corresponding
provisions of any subsequent federal tax laws.


                               -7-

                             EXHIBIT A
F-5. Other Terms. The use of any gender includes the other
genders, and the use of either the singular or the plural includes
the other.
F-6. Spendthrift Provision. No beneficiary shall have the power
to anticipate, encumber, or transfer his interest in any trust
estate in any manner. No part of any trust estate shall be liable
for or charged with any debts, contracts, liabilities or torts of
a beneficiary or subject to seizure or other process by any
creditor of a beneficiary.    Nothing in this paragraph shall be
construed to limit the otherwise valid exercise of a power of
appointment or right of withdrawal given by this trust agreement.

F-7. Texas Law Applies. The situs of the trusts established under
this trust agreement is Texas.     Wherever possible, the laws of
Texas shall apply to the construction, administration and validity
of each trust.
F-8. Maximum Term of Trusts. No trust shall continue for a period
longer than 21 years after the death of the last to die of trusters
and all of trusters' descendants who are living on the effective
date of this trust agreement. Any trust still in force at the end
of such period shall terminate, and the trust estate shall be
distributed to the beneficiary for whom the trust was established.
F-9.   Powers of Appointment Exercisable by Beneficiaries.       In
exercising a power of appointment given to a beneficiary by this
trust agreement, the beneficiary may appoint the property subject
to the power outright to the appointee, in trust, or to a custodian
for the appointee under the Uniform Gifts to Minors Act of any
state. If the beneficiary appoints to a custodian, he may select
the custodian. If the beneficiary appoints in trust, he may select
the trustee or trustees, may establish such administrative terms
for the trust as he deems appropriate, and may impose lawful
spendthrift restrictions.   He may give the trustee discretionary
powers over the income and principal, and may create a trust that
has several permissible distributees. He may create life interests
or other limited interests in some appointees with future interests
in favor of other appointees, may appoint different types of
interests among the appointees, and may create new powers of
appointment in a trustee or trustees or in any appointee. He may
impose lawful conditions on an appointment and,, in general, may
appoint to or among the appointees in any lawful manner.
In determining whether, in what manner and to what extent a
testamentary power of appointment has been exercised by a
beneficiary, the trustee may act in reliance upon a court order
admitting an instrument to probate as the beneficiary's last will
or an order finding that the beneficiary died intestate. Unless
within six months after the beneficiary's death the trustee has
actual notice of the existence of proceedings to probate a will of
the beneficiary, the trustee shall assume that the beneficiary died
                                -8-
intestate. The foregoing provisions are intended to expedite the
prompt and efficient administration of the trust and to protect the
trustee from any action taken or distribution made in accordance
with these provisions.   Nothing in this paragraph shall limit or
qualify any power of appointment given by this trust agreement or
any right which an appointee or taker in default of appointment may
have against any person receiving a distribution from the trustee
irrespective of the place of probate or of the time of discovery of
a will exercising the power or any other action taken in the
beneficiary's estate.

     G.   ACCEPTANCE BY TRUSTEE

By signing this trust agreement, the trustee (i) accepts these
trusts and all of the rights, powers and duties attached to the
office of trustee as provided herein, (ii) agrees to serve as
trustee of the Daniel Steven Weiner 1996 Trust and of any
Contingent Trusts which may be established under this trust
agreement, (iii) acknowledges receipt of the property described in
Attachment A, and (iv) agrees to hold and administer each trust
estate in accordance with the terms of this trust agreement.
    This trust agreement is executed effective as of the 20th day
of March, 1996.


                              Andy I. Weiner, Trustor and
                              Trustee


                              Katherine Friedman Weiner,
                              Trustor and Trustee




                                  -9-

                            EXHIBIT A
                       ATTACHMENT A: INITIAL CONTRIBUTIONS
                      TO THE DANIEL STEVEN WEINER 1996 TRUST




                                      $1.00




                                      Andy I. Weiner, Trustor and
                                      Trustee



                                      Katherine Friedman Weiner,
                                      Trustor and Trustee
3559:painsc\0157136




                                      -10-

                                   EXHIBIT A
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         EXHIBIT A
                                                                                                              FILED
                                                                                             12/1/2014 12:00:00 AM
                                                                                                       Stan Stanart
                                                                                                       County Clerk

DM                                                          PROBATE COURT 4                           Harris County



                                       No. 425,576-401

       IN RE:                               §               IN THE PROBATE COURT
                                            §
       DANIEL STEVEN WEINER                 §               NO. 4
                                            §
       1996 TRUST                           §               HARRIS COUNTY, TEXAS

                                                                             1 PER IN
                                   ORIGINAL PETITION
                                                                              12-1-2014

NOW COMES Daniel W. Warren (Daniel), Petitioner and Beneficiary of the Daniel Steven

Weiner 1996 Trust, and files this Original Petition pursuant to the Court’s Order (attached

“Exhibit A”) granting his Motion to Sever his causes of action from Cause No. 425,577, In Re

David Abraham Weiner 1996 Trust. Petitioner seeks removal of Andy I. Weiner as Trustee of

the Daniel Steven Weiner 1996 Trust and damages for breach of fiduciary duty.

                                           PARTIES

 1.    Daniel W. Warren, Petitioner, is an individual and Beneficiary of the Daniel Steven

 Weiner 1996 Trust (Daniel’s Trust). Daniel W. Warren resides in Harris County, Texas at

 1226 Muirfield, Houston, TX 77055. The last three digits of his driver’s license number are

 996. The last three digits of his Social Security number are 039.

 2.    Andy I. Weiner, Respondent, is an individual acting as trustee of Daniel’s Trust. He

 appeared and answered as Respondent in Cause No. 425,577, from which this case was

 severed. Mr. Weiner currently resides at 111 Post Oak Blvd., Apartment 452, Houston,

 Texas 77056. He can be served through his attorney of record, Sarah Patel-Pacheco, Crain

 Caton & James, 1401 McKinney, 17th Floor, Houston, Texas 77010.

 3. Katherine R. Warren, is an individual acting as trustee of Daniel’s Trust. She appeared and

 answered as a Respondent and Cross-Defendant in Cause No. 425,577 from which this case

 was severed. Petitioner released her of all liability in connection with her trusteeship
                                                                                           EXHIBIT
                                                                                                            exhibitsticker.com




                                                1


                                                                                             TAB L
pursuant to Texas Property Code § 114.005 and on August 7, 2014, filed a Notice of Nonsuit

against Ms. Warren in Cause No. 425,577, which applies to this case in the same manner as

if it had been filed under this Cause No. 425,576-401.


                              DISCOVERY CONTROL PLAN

4.   This case is subject to the discovery control plan and deadlines set out in the Agreed

Docket Control Order dated August 27, 2014 relating to Cause No. 425,577.

                                           VENUE

5.   Venue of this proceeding is proper in this Court pursuant to Texas Property Code §

115.002(b).

                                            FACTS

6.     Daniel W. Warren is the sole beneficiary of the Daniel Steven Weiner 1996 Trust

(Daniel’s Trust), an irrevocable inter vivos trust created by Respondent Andy Weiner and

Katherine Warren on March 20, 1996. A true and correct copy of the Trust Agreement is

attached hereto as “Exhibit B” and is incorporated for all purposes. Although neither party

has a signed copy of Daniel’s Trust Agreement, the parties have admitted the authenticity of

the unsigned copy in pleadings and discovery.

7.     Andy I. Weiner and Katherine R. Warren, are Trustors (settlors) and Trustees of

Daniel’s Trust. Either trustee may serve alone if one of them should cease to act as trustee.

[Paragraph D-1 of Daniel’s Trust Agreement].

8.   The Trust Agreement grants the trustee discretion to make distributions for Daniel’s

best interest, considering his age, the income and transfer tax effects, the cost of his support,

maintenance, education, and comfort without regard to any other resources available to him




                                                2
for these purposes, and any other factors the trustee deems relevant. [Paragraphs A-1 and C-2

of Daniel’s Trust Agreement].

9.    However, no distributions can be made “to a trustor, to any spouse of a trustor, or in

any manner that discharges a legal obligation (including an obligation of support) of a trustor

or any spouse of a trustor. Any distribution under this paragraph shall be a full discharge of

the trustee with respect thereto.” [Paragraph C-1 of the Trust Agreement].

10.   Daniel’s Trust currently owns marketable securities worth approximately $108,043 as

of September 30, 2014. The Trust assets came from a variety of sources, but primarily from

Daniel’s grandparents who wrote checks payable to “Andy Weiner, Custodian for Daniel

Weiner,” which Andy Weiner endorsed and deposited into Daniel’s Trust.

11.   Daniel’s Trust Agreement provides that Daniel may withdraw the entire Trust corpus

within 60 days after he becomes 21. To the extent Daniel does not exercise this withdrawal

right, the Trust continues until Daniel becomes 30, or dies, whichever is earlier.

12.   The Trust Agreement prohibits loans without adequate interest. It also prohibits loans to

a trustor as follows: “No power granted the trustee shall be construed to enable any person to

purchase, exchange, or otherwise deal with or dispose of any trust estate for less than an

adequate consideration in money or money’s worth or to authorize loans to any person

without adequate interest. No part of any trust estate may be (i) loaned to a trustor or to any

spouse of a trustor….” [Paragraph E-3(a) of the Trust Agreement]. Andy Weiner admits that

he read Paragraph E-3(a) before he borrowed the money. But he decided that “It was better

to borrow money from this trust than go into bankruptcy.” [Deposition of Andy Weiner, Jan.

16, 2014, page 33, lines 13-16].

13.   The Trust Agreement waives the trustee’s common law duty to diversify the Trust



                                               3
investments by permitting the trustee to invest in “property of any description,” including

“property unproductive of income, 1 shares of open or closed end investment trusts or

companies, wasting assets, 2 and any other property, regardless of location and without regard

to any requirement of diversification as to kind or amount.” [Paragraph E-1(a) of Daniel’s

Trust Agreement].

14.   However, the Trust Agreement does not waive the trustee’s duty to exercise judgment

or the duty not to speculate with Trust assets under Texas Property Code § 113.056, which

applied prior to January 1, 2004, as follows:

      Unless the terms of the trust instrument provide otherwise, in acquiring, investing,

      reinvesting, exchanging, retaining, selling, supervising, and managing trust

      property… a trustee shall exercise the judgment and care under the circumstances

      then prevailing that persons of ordinary prudence, discretion, and intelligence in

      the management of their own affairs, not in regard to speculation but in regard

      to the permanent disposition of their funds, considering the probable income from

      as well as the probable increase in value and safety of their capital.

15.   Nor does the Trust Agreement waive the trustee’s duty to prudently invest the Trust

assets and make them productive. Texas Property Code § 117.004(a) provides that: “A

trustee shall invest and manage trust assets as a prudent investor would, by considering the

purposes, terms, distribution requirements, and other circumstances of the trust.” Langford

v. Shamburger, 417 S.W.2d 438, 444-445, n.r.e. (It is a breach of fiduciary duty to

unreasonably delay the investment of trust funds).


1
  “Property unproductive of income” is property that has with little or no income, but is expected to appreciate,
such as raw land or growth oriented (low-yield) stocks. [Rest. 3rd, Trusts (Prudent Investor Rule § 227, cmts.]
2
  “Wasting assets” are those that are overproductive of income, such as an oil well or coal deposit that depletes
itself through use over time. [Rest. 3rd, Trusts (Prudent Investor Rule § 227, cmts.]

                                                       4
16.   The Trust Agreement relieves the trustee of liability “for any act or omission except in

the case of gross negligence, bad faith or fraud. Specifically in assessing the propriety of any

investment of a trust estate, the overall performance of the entire trust estate shall be taken

into account.” [Paragraph D-3(b) of the Trust Agreement] This Paragraph does not excuse

Andy Weiner for intentionally breaching his fiduciary duty. Nor could it, because Texas

Property Code § 114.007(a) renders any term of a trust relieving a trustee of liability for an

intentional breach of trust as unenforceable.

17.   Andy Weiner began purchasing Weiners Stores Inc. stock for the Trust in 1999, shortly

after it began trading on the OTC Bulletin Board in August 1998. OTC stocks do not meet

the listing requirements of the national exchanges like NYSE, AMEX, and NASDAQ

because they tend to be too small, closely held, thinly traded and risky.

18.   Weiners Stores Inc. had just emerged from Chapter 11 bankruptcy in August 1997, had

only 518 shareholders, and was trading at 12.5 cents to $1.50 a share in 1998 and 1999. 3 Its

Annual Report filed with the SEC in April 1999 reported that its sales were sliding and it had

not paid a dividend or had an operating profit in the last five years. Id.

19.   Andy Weiner was aware that Weiners Stores Inc. was a risky investment. He was an

executive officer of Weiners Stores Inc. for five to eight years before it filed for bankruptcy

in 1995. [Andy Weiner Deposition, Jan. 16, 2014, p. 14, lines 1-17] Andy Weiner has a BA

from Stanford and a Masters in Business from the University of Texas and is a retail

shopping center developer. [Id. at p. 13, lines 16-25].

20. Andy Weiner made several purchases of Weiner Stores Inc. stock for the Trust in May,



3
  Weiners Stores Inc. Annual Report - [X] Reg. S-K Item 405 - Form 10-K, available at
http://www.secinfo.com/dRx61.68u.d.htm#6thPage.


                                                     5
June, and August 1999, spending $28,764 of Trust money. By August 31, 1999, he had

accumulated 52,000 shares of Weiners Stores Inc. stock in the Trust, which was over 65

percent of its value. Intentionally placing such a large percentage of the Trust’s assets at a

risk of total loss was grossly negligent. [Dolan v. Dolan, 2009 Tex. App.-Houston Lexis

4487 (The trustee, an experienced businessman, was grossly negligent and ordered to pay

exemplary damages for placing nearly half the trust assets at risk of total loss.)]

21. Weiner Stores Inc. filed for Chapter 11 bankruptcy again in October 2000. It

announced that it was closing all of its stores in June 2001. Andy Weiner sold the Trust’s

52,000 shares in December 2001 for $2, resulting in a complete loss of the Trust’s $28,762

investment. Weiners Stores Inc. converted to a Chapter 7 bankruptcy six months later.

22.   During the three years that Daniel’s Trust funds were invested in Weiners Stores Inc.

stock, Daniel’s Trust lost over 12 percent of its portfolio value each year. Investing in

Weiners Stores Inc. was grossly negligent based on the “overall performance of the entire

trust estate,” which is the standard set forth in the Trust Agreement by which the propriety of

an investment will be evaluated.

23.   On March 30, 2009, Andy Weiner liquidated the Trust’s entire portfolio and on April 9,

2009 he knowingly and intentionally instructed Fidelity to transfer $90,959.38 to his own

personal account at Fidelity. This left $1,000 in the Trust, with no promissory note, no

interest, and no security for the $90,959.38 loan to Andy Weiner, who was “on the edge of

bankruptcy.” Andy Weiner knew that making the loan to himself was directly contrary to the

Trust Agreement and that it would place the entire Trust portfolio at risk of loss by making

an unsecured loan to a person on the edge of bankruptcy. [Dolan v. Dolan, 2009 Tex. App.-




                                                6
Houston Lexis 4487 (The trustee was found to be grossly negligent and ordered to pay

exemplary damages for loaning himself half the trust funds without interest or security.)]

24.   On July 10, 2010, Andy Weiner repaid $90,959.38 to Daniel’s Trust without interest.

Thereafter, he purposely delayed reinvesting the Trust money for 26 months until September

2012 when he finally invested the funds 51 percent in Fidelity Spartan 500 Index Fund

(FUSEX), 31 percent in Fidelity Contrafund (FCNTX), and 18 percent in Fidelity Total Bond

Fund (FTBFX).

25.   Had Andy Weiner invested Daniel’s Trust funds on April 9, 2009 in the same funds and

percentages as he purchased for the Trust in September 2012, Daniel’s Trust would have

earned $67,901 from April 9, 2009 to September 11, 2012. Yet the Trust earned less than

$100 during this same time period. In fact, since its inception in 1996, Daniel’s Trust lost an

average of -1.167 percent per year. Based on the “overall performance of Daniel’s entire trust

estate,” it was grossly negligent not to invest Daniel’s Trust money from April 9, 2009 to

September 11, 2012.

26.   Failing to invest the Trust assets was also bad faith because Andy Weiner had an

improper motive for not investing the money. He planned to use the trust funds for his own

“personal spending,” according to an email he wrote to Katherine in 2011 stating that he was

ready to consider investing the kid’s trust funds because “If we sell the Tractor’s in the near

term, we would not need their funds for our personal spending.” [Robson v. Gilbreath, 267

S.W.3d 401, 407 (Tex. App.—Austin 2008, pet. denied) (“Improper motive is an essential

element of bad faith.”); In re Hubberd Testamentary Trust, 432 S.W.3d 358, 369 (Tex. App.

San Antonio 2014) ("Bad faith is not simply bad judgment or negligence, but means the

conscious doing of a wrong for dishonest, discriminatory, or malicious purpose.").



                                               7
27.   Daniel W. Warren did not discover Andy Weiner’s breaches of fiduciary duty until

discovery began in Cause No. 425,577. Daniel was a minor when the borrowings and

imprudent investing occurred. The period of limitations does not begin to run against a

person entitled to bring an action for breach of fiduciary duty while the person is under 18

years old. [Tex. Civ. Prac. & Rem. Code §§ 16.001, 16.004.] Daniel W. Warren became age

18 on March 11, 2014 and is thus within the limitations period for bringing this action.

28.   On December 19, 2013, Daniel W. Warren, through his attorney, demanded an

accounting of his Trust under Texas Property Code § 113.151-152. Andy Weiner has not yet

provided one.

                                   CAUSES OF ACTION

29.   Daniel W. Warren incorporates by reference each and every allegation contained in the

preceding paragraphs as if fully set forth herein.

30.   There is a real and justiciable controversy between Daniel W. Warren and Andy

Weiner concerning Andy Weiner’s actions as trustee of Daniel’s Trust.

31.   Andy Weiner has knowingly, intentionally, and with gross negligence breached his

fiduciary duties in the following manner, resulting in a material loss to the Trust:

      a.        By knowingly and intentionally exposing over 65 percent of Daniel’s Trust

  funds to an extreme degree of risk by investing in Weiner Stores Inc., a highly speculative

  unlisted penny stock with no earnings or dividend history, resulting in a complete loss of the

  $28,762 investment, plus any future earnings it could have made, in violation of the duty to

  prudently invest the Trust assets without speculation under the Texas Property Code §

  113.056 as it applied prior to January 1, 2004, resulting in a material loss to the Trust;




                                                8
    b.     By knowingly and intentionally instructing Fidelity to transfer nearly all of

Daniel’s Trust funds to Andy Weiner’s own personal account at Fidelity on April 9, 2009, in

violation of the Trust Agreement, which expressly forbids “loans to a trustor or any spouse

of a trustor” and “loans to any person without adequate interest” [Paragraph E-3(a) of the

Trust Agreement], which Andy Weiner read before he transferred the money to himself,

resulting in a material loss to the Trust;

    c.     By knowingly and intentionally instructing Fidelity to transfer nearly all of

Daniel’s Trust funds to Andy Weiner’s own personal account at Fidelity on April 9, 2009 in

violation of the Trust Agreement Paragraph C-1, which expressly forbids “distributions to a

trustor, or in any manner that discharges a legal obligation (including an obligation of

support) of a trustor or any spouse of a trustor,” resulting in a material loss to the Trust;

    d.     By failing to compensate Daniel’s Trust for Andy Weiner’s personal use of

$90,959.38 belonging to the Trust, resulting in a material loss to the Trust;

    e.     By knowingly and intentionally putting his own interest above the beneficiary’s

by using Daniel’s Trust funds as Andy Weiner’s own money, in violation of the duty of

loyalty under Texas Trust Code § 117.007, the duty not to profit by self-dealing with the

Trust under Texas Trust Code § 114.0001(a), and the duty to segregate trust assets under

Restatement of the Law Third (Trusts) § 179, resulting in a material loss to the Trust;

    f.         By knowingly, intentionally, and with bad faith failing to invest Daniel’s

Trust funds from April 9, 2009 to September 11, 2012 in violation of the duty to prudently

invest the Trust assets under Texas Property Code § 117.004 and the duty of loyalty under

Texas Property Code § 117.007, resulting in a material loss to the Trust;




                                              9
       g.          By refusing to render an accounting after written demand by Daniel W.

   Warren on December 19, 2013 in violation of the duty to account under Texas Trust Code

   §§ 113.151 and 113.152.

 32.        Daniel and his Trust have suffered substantial economic damages as a direct result

 of Andy Weiner’s gross negligence and material breaches of fiduciary duty enumerated

 above.

 33.      Removal of Andy Weiner as Trustee is necessary to prevent further harm to the Trust.


                                   RELIEF REQUESTED

WHEREFORE, Daniel W. Warren respectfully requests:

  34. Judgment against Andy Weiner for a sum within the jurisdictional limits of the Court.

  35. Monetary relief of over $200,000 but not more than $1,000,000.

  36. Removal of Andy Weiner as Trustee of the Daniel Steven Weiner 1996 Trust pursuant

 to Texas Property Code §§ 114.008(a)(7) and 113.082;

  37. That Andy Weiner be ordered to pay money or restore property to Daniel’s Trust equal

 to the trust’s lost profits caused by Andy Weiner’s improper borrowing and failure to

 prudently invest the Trust funds, pursuant to Texas Property Code § 114.008(a)(3) and its

 predecessor Texas Property Code § 113.056;

  38. That Andy Weiner be ordered to pay Daniel’s Trust exemplary damages of greater than

 two times the Trust’s economic damages based his knowing, intentional, and reckless dealing

 with Trust property worth over $20,000 in a manner that is contrary to the Trust Agreement

 and the Texas Property Code, and involved a substantial risk of loss to the Trust. [Tex. Civ.

 Prac. & Rem. Code § 41.008(b), 41.008(c)(10); Tex. Penal Code § 32.45].

                                                10
39. That Daniel W. Warren be awarded reasonable and necessary attorney fees, costs, and

expenses through trial and all appeals under applicable Texas law, including but not limited

to Texas Civ. Prac. & Rem. Code § 38.001 and Texas Property Code §§ 114.064 and

113.151(a).

40. That Andy Weiner be ordered to submit an accounting that meets the requirements of

Texas Property Code § 113.152 and personally bear the cost of the accounting pursuant to

Texas Property Code § 113.151.

41. That Daniel’s Trust be modified pursuant to Texas Property Code § 112.054(a)(3) to

appoint Daniel Warren as co-Trustee with Katherine Warren, or alternatively to terminate the

Trust and distribute the funds to Daniel Warren.

42. That Daniel W. Warren and his Trust be awarded prejudgment and post judgment

interest at the rate of 5 percent as provided by the Texas Finance Code § 304.003(c), or as

otherwise appropriate.

                                         PRAYER

 WHEREFORE PREMISES CONSIDERED, Daniel W. Warren prays that the Court grant

 the requested relief and such further relief to which Daniel W. Warren and his Trust are

 justly entitled.

                                           By:_/s/ Carol A. Cantrell
                                           Carol A. Cantrell, Attorney for Daniel W. Warren
                                           Texas Bar No.: 24043592
                                           Meredith N. McIver
                                           Texas Bar No.: 24078974
                                           3700 Buffalo Speedway, Suite 520
                                           Houston, TX 77098
                                           Phone: 713-333-0555
                                           Fax: 713-333-0550




                                             11
                              CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been duly served
by citation and/or electronic service to counsel of record indicated below on this December 1,
2014.

Sarah Patel Pacheco
Kathleen Tanner Beduze
Crain Caton & James
Five Houston Center,
1401 McKinney, 17th Floor
Houston, TX 77010
pacheco-efile@craincaton.com
713-658-1921 (facsimile)
ATTORNEY FOR RESPONDENT ANDY I. WEINER

Thomas R. Conner
Conner & Lindamood, P.C.
1221 Lamar, Suite 1010
Houston, TX 77010
tom@lawcl.com
713-654-8115 (facsimile)
ATTORNEY FOR KATHERINE R. WARREN

By:_/s/ Carol A. Cantrell




                                              12
                                            No. 425,577

       IN RE:                                  §             IN THE PROBATE COURT
                                               §
       OJ\ VID ABRAHAM WEINER                  §             NO . ..+
                                               ':is
        1994 TRUST                             §             HARRIS COUNTY, TEXAS


                         AMEN DED ORDER ON MOTION TO SEVER

       On this date. the Court having considered Daniel W. Warren's Motion to Sever and the
Court's written and verbal Orders on August 27-28. 2014. GRANTS the Motion to Sever as
follows. It is hereby:

       ORDERED that Danie l W. Warren shall restate the claims set forth in his Motion to
Sever as a new Original Petition by December I, 2014 and complete service pursuant to the rules
that would apply to a new lawsuit. It is fur1her,

       ORDERED that the Court Clerk assign Cause No. 425,576-401 to Daniel W. Warren's
new Original Petition. It is further.

       ORDERED that Daniel W. Warren file all future pleadings. motions. and other papers
under Cause No. 425576-40 I as Petitioner rather than Intervenor. ll is further.

       ORDERED that all prior discovery. orders. motions, responses and answers pertainjng to
Daniel W. Warren in Cause No. 425,577 shall apply in the same ma1111er as if such had occurred
in Cause No. 425,576-401, and that the Clerk of this Court is hereby directed to transfer and file
copies of the following pleadings and orders from Cause No. 425,577 to Cause No. 425,576-40 I:

        1.      Daniel W. Warren's Original Petition in Intervention: docket entry date 4-22-14
       2.       Andy Weiner's Motion for Partial Summary Judgment (a copy of wh ich shall
                remain filed in Cause No. 425,577): docket entry date 7-15-14
        3.      Andy Weiner's Special Exceptions to the Original Petition in Intervention filed by
                Daniel W. Warren; docket entry date 8-5-14
       4.       Notice of Submission of Andy Weiner's Motion fo r Partial Summary Judgment (a
                copy of which shall remain filed in Cause No. 425,577); docket entry date 8-5-14
        5.      Petitioners' Notice of Nonsuit Against Katherine Warren (a copy of which shall
                remain filed in Cause No. 425.577); docket entry date 8-7-14

                                                                                          EXHIBIT
                                                                                                     exhibitsticker.com




                                                                                               A
6.    Andy Weiner's Motion to Compel Depositions (a copy of which shall remmn
      filed in Cause No. 425,577): docket entry date 8-14-14
7.    Petitioners' Joint Motion lor Partial Summary Judgment (a copy of which shall
      remain filed in Cause No. 425,577): docket entry date 7-1-14
8.    Motion for Continuance of Hearing on Motion for Prutial Summary Judgment (a
      copy of which shall remain filed in Cause No. 425,577); docket entry date 8- 14-
      14
9.    Petitioners' Response to Andy Weiner's Motion to Compel (a copy of which shall
      remain filed in Cause No. 425.577): docket entry date 8-18-14
I0.   Andy Weiner's Special Exceptions to Petitioners' Joint Motion for Partial
      Summary Judgment (a copy of which shall remain filed in Cause No. 425,577):
      docket entry date 8-22-14
II.   Petitioners' Response to Andy Weiner's Motion for Continuance (a copy of
      which shall remain filed in Cause No. 425.577): docket entry date 8-25-14
12.   Petitioners' Response to Andy Weiner's Special Exceptions to Petitioners' .Joint
      Motion for Partial Summary Judgment (a copy of which shall remain filed Ill
      Cause No. 425.577); docket entry date 8-25-14
13.   Order Granting Andy Weiner's Special Exceptions to the Original Petition m
      Intervention filed by Dru1iel W. Warren: docket entry date 8-29-14
14.   Order Denying Motion for Sanctions: docket entry date 8-29-14
15.   Order Partially Granting and Partially Denying Andy Weiner's Special
      Exceptions to Petitioners' Joint Motion lor Partial Summary Judgment (a copy or
      which shall remain filed in Cause No. 425.577): docket entry date 9-4-14
16.   Daniel W . Warren's Motion to Sever: docket entry date 9-8-14
17.   Order Pattially Granting ru1d Partially Denying Andy Weiner's Motion for Partial
      Summary Judgment (a copy of which shall remain filed in Cause No. 425,577):
      docket entry date 9-26-14
18.   Order Granting Motion to Sever: signed I 1-5-14
19.   Cow·t's Docket Sheet: docket entry date 8-29-14

20.   Andy Weiner's First Supplement To Original Answer; docket entry date 7-8-14

21.   Petitioner's Response to Andy Weiner's Motion for Partial Traditional Summary
      Judgment; docket entry date 8-5-14;

22.   Petitioner's Application to Quash Deposition of Daniel Warren; docket entry date
      8-11-14;

23.   Order to Compel Depositions Granted: docket entry date 8-29-14: and

24.   Petitioner's Responses to Andy Weiner's Special Exceptions to Petition m
                  intervention and Motion for Sanctions; docket entry date 8-19-14.

 It is further,

       ORDERED that Cause No. 425,576-401 is subject to the deadlines set out in the Agreed
Docket Control Order dated August 27, 2014 relating to Cause No. 425,577. It is fm1her,

       ORDERED that all costs related to the copying, transfer, and filing of items l through 24
herein be assessed against Daniel Warren. It is fut1hcr,

       ORDERED that if Daniel W. Warren fails to file a new Original Petition by the 1st day of
December, 2014 as Cause No. 425,576-401, his pleading in Cause No. 425,577 will be
dismissed.



       SIGNED on this _lJ_ day of N~                       , 2014.



                                                      PRESIDING JUDGE
                   DANIEL STEVEN WEINER 1996 TRUST


     By this trust agreement, Andy I. Weiner and Katherine Friedman
Weiner, husband and wife, both of Harris County, Texas, as
"trustors," establish the Daniel steven Weiner 1996 Trust for the
benefit of their son, Daniel steven Weiner ("Daniel"), born
March 11, 1996.    Trustors grant, assign and deliver to Andy I.
Weiner and Katherine Friedman Weiner, both of Harris County, Texas,
as "trustees," the property described in Attachment A. Attachment
A, which is captioned "Initial Contributions to the Daniel Steven
Weiner 1996 Trust, 11 is incorporated by reference as a part of this
trust agreement.
     This trust agreement and the trusts established by it are
irrevocable.   No person shall have the right to revoke or amend
this trust agreement or any of its provisions. However, property
acceptable to the trustee may be added to any trust from time to
time in the future by trustors or by any other person (including
additions pursuant to the provisions of the last will of any
person) .

     All references to "trustee" shall refer to the person or
persons then acting as such.
     A.    PRIMARY TRUST

A-1.   Distributions . The income of the trust may be accumulated
and retained, in whole or in part, or the trustee may distribute to
Daniel, from time to time, so much or all of the trust estate as,
in the trustee's discretion, is in Daniel's best interests.

A-2.   Termination.  Daniel may withdraw any part or all of the
trust estate within 60 days after he becomes age 21, and may
thereby terminate the trust as to the part withdrawn.    Exercise of
this withdrawal right shall be by one or more written instruments
delivered to the trustee within the 60-day period.    If or to the
extent that Daniel does not exercise this withdrawal right, the
trust shall continue until Daniel becomes age 30 or dies before
that age, at which time the trust estate shall be distributed:

     (a)    To Daniel.

     (b) If Daniel is not then living, to such one or more
persons, corporations or organizations (including Daniel's estate) ,
as Daniel appoints by a will which specifically refers to this
power of appointment.    If or to the extent that Daniel does not
effectively exercise this power of appointment, the trust estate
shall be distributed:

     (1)    To Daniel's descendants.
     (2)  If none of Daniel's descendants is then living, to
trustors' descendants.                                    .-............. .
                                                                EXHIBIT
                                                                          exhibitsticker.com




                                                                   B
     ( 3) If none of trusters'      descendants   is   then living,   to
trusters' heirs.
A-3. Payment of Taxes.     If Daniel's will contains no contrary
directions, the trustee shall pay from the trust estate the entire
increment in taxes payable by reason of Daniel's death (including
any interest or penalties thereon) to the extent (if any) that the
total of such taxes is greater than would have been imposed if no
portion of the trust estate were taken into account in determining
such taxes.

     B.    CONTINGENT TRUSTS
B-1. Trusts Established. Any portion of a trust estate upon the
trusts termination (other than a portion withdrawn by Daniel
pursuant to Paragraph A-2) which would be distributable to a
beneficiary who is under age 30 or to a beneficiary who is under a
legal disability instead shall be distributed to the trustee of a
Contingent Trust (unless otherwise directed by the valid exercise
of a power of appointment) .       Each beneficiary's portion so
distributed shall be held and administered as the initial trust
estate of a separate trust for the beneficiary.      However, if a
Contingent Trust is already in existence for that beneficiary, any
additional portion to be distributed to the trustee of a Contingent
Trust for the beneficiary shall be added to the trust estate of the
existing contingent Trust.
B-2. Distributions.      The income of each Contingent Trust may be
accumulated and retained, in whole or in part, or the trustee may
distribute to the beneficiary for whom the trust was established,
from time to time, so much or all of the trust estate as, in the
trustee's discretion, is in the beneficiary's best interests.

B-3. Termination. Each Contingent Trust shall terminate when the
beneficiary for whom the trust was established has become age 30
and is under no legal disability or upon the beneficiary's earlier
death. Upon termination, the trust estate shall be distributed:

     (a)    To the beneficiary.

     (b)  If the beneficiary is not then living, to such one or
more persons, corporations or organizations as the beneficiary
appoints by a will which specifically refers to this power of
appointment.   If none of the beneficiary's descendants is then
living, this power may not be exercised in favor of the
beneficiary, the beneficiary's estate, the beneficiary's creditors
or the creditors of the beneficiary's estate. If or to the extent
that the beneficiary does not effectively exercise this power of
appointment, the trust estate shall be distributed:

     (1)   To the beneficiary's descendants.


                                  -2-
     (2) If none of the beneficiary's descendants is then living,
to the descendants of the beneficiary's nearest ancestor who was
one of trustors' descendants and who has descendants then living.

     (3)  If none of these persons is then living, to trusters,
descendants.
     ( 4) If none of trustors'    descendants   is then   living,   to
trustors' heirs.
       C.   DISTRIBUTIONS
c-1. Distributions to or for Beneficiaries. During the term of a
trust, any distribution to be made to a beneficiary from the trust
may be made (i) to the beneficiary, (ii) if the beneficiary is
under a legal disability or if the trustee determines that the
beneficiary is unable to properly manage his affairs, to a person
furnishing support, maintenance or education for the beneficiary or
with whom the beneficiary is residing, for expenditure on the
beneficiary's behalf, or (iii) to a custodian for a minor
beneficiary, as selected by the trustee, under the Uniform Gifts to
Minors Act of any state. Alternatively, the trustee may otherwise
apply all or a part of the distribution for the beneficiary's
benefit. However, no such distribution shall be made to a trustor,
to any spouse of a trustor, or in any manner that discharges a
legal obligation (including an obligation of support) of a trustor
or any spouse of a trustor. Any distribution under this paragraph
shall be a full discharge of the trustee with respect thereto.

c-2.  Best Interests of Beneficiary.    In making distributions in
the "best interests" of a beneficiary, the trustee may consider the
age of the beneficiary, the costs of the beneficiary's support,
maintenance, education and comfort without regard to any other
resources available to the beneficiary for these purposes, the
effect of any distribution upon the income and transfer tax
liability of the beneficiary or of the trust, and any other factors
deemed relevant by the trustee.

       D.   OFFICE OF TRUSTEE

0-1.   Successor Trustee, Co-Trustee.  The following provisions
shall apply to each separate trust established under this trust
agreement:

      (a) Successor Trustee.  Should Andy I. Weiner or Katherine
Friedman Weiner cease to act as trustee, for any reason, the one
remaining shall continue to act as trustee.   Should both Andy I.
Weiner and Katherine Friedman Weiner cease to act as trustees, for
any reason, trustors appoint Bayle Weiner Drubel as successor
trustee.


                                -3-
     (b) Appointment of Successor Trustee by Trustee . At any time
after qualifying as trustee, any trustee may appoint a successor
trustee to act in his place, either immediately or in the future
upon any stated contingency, and may thereby supplement the
provisions of subparagraph (a).
      (c) Appointment of Successor Trustee by Beneficiaries. If at
any time there is no trustee acting and none has been appointed, a
majority of the beneficiaries (acting through the beneficiary's
natural or legal guardian or legal representative, in the case of
a beneficiary under a legal disability) who might then be entitled
to receive a distribution from the trust estate shall appoint a
successor trustee.
     (d)   Appointment of Co-Trustee.   The     trustee    (acting
unanimously if more than one) may appoint one or more co-trustees.
     (e) Who May Be Appointed. A successor trustee or co-trustee
may be any individual, bank or trust company and may be domiciled
anywhere.
      (f) Procedure for Appointment. Appointment shall be made by
written instrument filed with the trust records.          Any such
appointment may be changed or revoked prior to the date it becomes
effective.   Any such appointment may be limited in any manner
deemed advisable by the person making the appointment, including,
for example, restricting the power over distributions as necessary
to avoid the imposition of any tax upon the trust, the appointee or
the appointee's estate.
D-2. Resignation of Trustee. A trustee may resign from a trust
without the necessity of any court proceeding upon meeting these
conditions:
     (a) Notice . At least 30 days' written notice      (if not waived)
shall be given to each beneficiary who might then       be entitled to
receive a distribution from the trust estate. If a      beneficiary is
under a legal disability, notice shall be given to       (or waived by)
the beneficiary's natural or legal guardian.
     (b)   Accounting .  If and to the e x tent required by the
successor trustee, an accounting for the administration of the
trust shall be given to the successor trustee.      The successor
trustee shall be fully protected in relying upon such accounting.
D-3.   Rights and Liabilities.

       (a) Bond Not Required. No bond or other security shall be
       required of any trustee.

       (b)   Liabilities.   This agreement shall always be construed in


                                   -4-
favor of the validity of any act by or omission of any trustee. A
trustee shall not be liable for any act or omission except in the
case of gross negligence, bad faith or fraud.     Specifically, in
assessing the propriety of any investment of a trust estate, the
overall performance of the entire trust estate shall be taken into
account.

     (c)  Compensation. Each trustee shall be entitled to receive
reasonable compensation for services actually rendered to a trust.

     E.   ADMINISTRATION

E-1. General Powers of Trustee. To carry out the trust purposes
but subject to any limitations stated elsewhere herein, the trustee
of each trust shall have the following powers, which may be
exercised free from court supervision, and which shall exist until
all of the trust estate has been distributed:

     (a)  Trust Estate. The trustee may invest and reinvest all or
any part of the trust estate in property of any description and may
retain as a part of the trust estate any property acquired at any
time and in any manner.   Specifically, and without regard to the
provisions of any applicable state law, the trustee may retain, or
invest and reinvest in, property unproductive of income, shares of
open or closed end investment trusts or companies, wasting assets,
and any other property, regardless of location and without regard
to any requirement of diversification as to kind or amount.

     (b)   Business Interests. The trustee may continue operation
of any business entity, in any business form, with all or any part
of the trust estate, and may reorganize or liquidate any such
entity at any time.

      (c) Transfers, Loans. The trustee may lease, sell, transfer,
or encumber in any manner (including with purchase money mortgages)
all or any part of the trust estate, and may loan or borrow money
in any manner (including by joint and several obligations) with or
without security. Subject to the provisions of Paragraph E-3{a),
the trustee may purchase assets from the estate of a trustor and
may loan funds to the estate of a trustor at such rate of interest
and with such security as the trustee determines to be in the best
interests of the current beneficiaries of the trust.

      (d) Dealings With Related Parties. The trustee may deal with
any person or entity regardless of any relationship or identity of
any trustee to or with that person or entity and may hold or invest
all or any part of the trust estate in common or undivided
interests with that person or entity.

     (e) Agents, Employees. The trustee may employ and compensate
agents and other employees ~nd may delegate to them any and all
discretions and powers.

                                -5-
     (f) Partitions, Distributions. The trustee may partition all
or any part of any interest, may pay and receive such moneys or
properties as may be necessary to equalize differences, and in so
doing (i) may make any distribution of all or any part of the trust
estate in any manner (including composing shares differently) and
(ii) may evaluate any property, which valuation shall be binding on
all beneficiaries.
     (g)   Claims, Controversies.    The trustee may maintain and
defend any claim or controversy by or against the trust without the
joinder or consent of any beneficiary.
      (h)    Additional Powers. In addition, the trustee shall have
all rights, privileges and powers now or hereafter granted to
trustees in Texas, including those granted under the Texas Trust
Code.     Any subsequent legislation or regulation expanding or
limiting the rights, privileges and powers granted a trustee shall
apply to all trusts hereunder unless the trustee elects not to have
such legislation or regulation apply to a particular trust by a
written instrument filed with the trust records.       However, the
provisions made for the various beneficiaries under this trust
agreement are exclusive. Any statute that purports to enlarge the
class of beneficiaries to whom distributions may be made or the
purposes for which distributions may be made shall not apply to any
trust.    All trust powers may be exercised upon such terms as the
trustee deems advisable and may affect trust properties for any
length of time regardless of the duration of the trust. Generally,
and subject only to the terms of this trust agreement, the trustee
shall hold, manage, control, use, invest, reinvest, and dispose of
the trust estate to the same extent as if the trustee were the fee
simple owner thereof.
E-2.     Principal and Income Determinations.      The receipts,
disbursements and reserves of each trust may be allocated, on a
cash or accrual basis, between principal and income in the
trustee's discretion without regard to the provisions of any
statute.    To the extent the trustee does not exercise this
discretionary power, the provisions of the Texas Trust Code shall
control.
E-3.   Restrictions on the Exercise of Certain Powers.
      (a) Dealings with Trust Estate. No power granted the trustee
shall be construed to enable any person to purchase, exchange, or
otherwise deal with or dispose of any trust estate for less than an
adequate consideration in money or money's worth or to authorize
loans to any person without adequate interest.      No part of any
trust estate may be (i) loaned to a trustor or to any spouse of a
trustor or (ii) applied to the payment of premiums on policies of
insurance on the life of a trustor or on the life of any spouse of
a trustor.

                                -6-
      (b)  Distributions to or for Trustee. Any power to make
discretionary distributions to or for the benefit of a person who
is serving as trustee of a trust (including distributions to the
person's spouse and distributions in discharge of any legal
obligation of the person) shall be exercisable solely by the
trustee or trustees other than that person. If no other trustee is
then serving, such power shall not be exercisable.

E-4. Release and Delegations of Powers. Any power granted to a
trustee may be released, in whole or in part, temporarily or
permanently. Except as provided in Paragraph E-3, any such power
may be delegated, in whole or in part, temporarily or permanently,
to any other trustee then acting. A release or delegation shall be
by written instrument filed with the records of each trust to which
the release or delegation applies.
     F.   DEFINITIONS AND GENERAL PROVISIONS
F-1. Trust Estate.   "Trust estate" means all assets, however and
whenever acquired (including income and accumulated income), which
may belong to a trust at any given time.

F-2. Descendants. "Descendants" means the legitimate children of
the person or persons designated and the legitimate lineal
descendants of such children, and includes any person adopted
before becoming age 18 and the adopted person's descendants.      A
posthumous child shall be considered as living at the death of his
parent. Whenever a distribution is to be made to the descendants
of any person, the property to be distributed shall be divided into
as many equal shares as there are living children of the person and
deceased children of the person who left descendants who are then
living.  Each living child shall take one share and the share of
each deceased child shall be divided among his then living
descendants in the same manner.   "Trusters' descendants" includes
only those persons descended from both trusters.
F-3.   Heirs.   Any distribution to be made to the "heirs" of a
person shall be made to the individuals who would have inherited
the person's personal property if the person had died intestate at
the time the distribution is to be made, domiciled in Texas and not
married, under the laws of Texas in force on the effective date of
this trust agreement, with the shares of taking determined by those
laws. However, both trusters and any spouse of a trustor shall be
deemed to have died prior to the time that any such distribution is
to be made. A distribution to "trusters' heirs" shall be made to
the heirs of Andy I. Weiner.
F-4. Internal Revenue Code.    "Internal Revenue Code" means the
Internal Revenue Code of 1986, as amended, or corresponding
provisions of any subsequent federal tax laws.


                               -7-
F-5. Other Terms. The use of any gender includes the other
genders, and the use of either the singular or the plural includes
the other.
F-6. Spendthrift Provision. No beneficiary shall have the power
to anticipate, encumber, or transfer his interest in any trust
estate in any manner. No part of any trust estate shall be liable
for or charged with any debts, contracts, liabilities or torts of
a beneficiary or subject to seizure or other process by any
creditor of a beneficiary.    Nothing in this paragraph shall be
construed to limit the otherwise valid exercise of a power of
appointment or right of withdrawal given by this trust agreement.

F-7. Texas Law Applies. The situs of the trusts established under
this trust agreement is Texas.     Wherever possible, the laws of
Texas shall apply to the construction, administration and validity
of each trust.
F-8. Maximum Term of Trusts. No trust shall continue for a period
longer than 21 years after the death of the last to die of trustors
and all of trustors' descendants who are living on the effective
date of this trust agreement. Any trust still in force at the end
of such period shall terminate, and the trust estate shall be
distributed to the beneficiary for whom the trust was established.
F-9.   Powers of Appointment Exercisable by Beneficiaries.       In
exercising a power of appointment given to a beneficiary by this
trust agreement, the beneficiary may appoint the property subject
to the power outright to the appointee, in trust, or to a custodian
for the appointee under the Uniform Gifts to Minors Act of any
state. If the beneficiary appoints to a custodian, he may select
the custodian. If the beneficiary appoints in trust, he may select
the trustee or trustees, may establish such administrative terms
for the trust as he deems appropriate, and may impose lawful
spendthrift restrictions.   He may give the trustee discretionary
powers over the income and principal, and may create a trust that
has several permissible distributees. He may create life interests
or other limited interests in some appointees with future interests
in favor of other appointees, may appoint different types of
interests among the appointees, and may create new powers of
appointment in a trustee or trustees or in any appointee. He may
impose lawful conditions on an appointment and,, in general, may
appoint to or among the appointees in any lawful manner.
In determining whether, in what manner and to what extent a
testamentary power of appointment has been exercised by a
beneficiary, the trustee may act in reliance upon a court order
admitting an instrument to probate as the beneficiary's last will
or an order finding that the beneficiary died intestate.     Unless
within six months after the beneficiary's death the trustee has
actual notice of the existence of proceedings to probate a will of
the beneficiary, the trustee shall assume that the beneficiary died
                                -8-
intestate. The foregoing provisions are intended to expedite the
prompt and efficient administration of the trust and to protect the
trustee from any action taken or distribution made in accordance
with these provisions.   Nothing in this paragraph shall limit or
qualify any power of appointment given by this trust agreement or
any right which an appointee or taker in default of appointment may
have against any person receiving a distribution from the trustee
irrespective of the place of probate or of the time of discovery of
a will exercising the power or any other action taken in the
beneficiary's estate.

     G.   ACCEPTANCE BY TRUSTEE

By signing this trust agreement, the trustee (i) accepts these
trusts and all of the rights, powers and duties attached to the
office of trustee as provided herein, (ii) agrees to serve as
trustee of the Daniel Steven Weiner 1996 Trust and of any
Contingent Trusts which may be established under this trust
agreement, (iii) acknowledges receipt of the property described in
Attachment A, and (iv) agrees to hold and administer each trust
estate in accordance with the terms of this trust agreement.
    This trust agreement is executed effective as of the 20th day
of March, 1996.


                              Andy I. Weiner, Trustor and
                              Trustee


                              Katherine Friedman Weiner,
                              Trustor and Trustee




                                  -9-
                       ATTACHMENT A: INITIAL CONTRIBUTIONS
                      TO THE DANIEL STEVEN WEINER 1996 TRUST




                                      $1.00




                                      Andy I. Weiner, Trustor and
                                      Trustee



                                      Katherine Friedman Weiner,
                                      Trustor and Trustee
3559:painsc\0157136




                                      -10-
                                            No. 425,577

        INRE:                                  §             IN THE PROBATE COURT
                                               §
        DAVID ABRAHAM WEINER                   §             N0.4
                                               §
        1994 TRUST                             §             HARRIS COUNTY, TEXAS


                          AMENDED ORDER ON MOTION TO SEVER

        On this date, the Court having considered Daniel W. Warren' s Motion to Sever and the
Court's written and verbal Orders on August 27-28 , 2014, GRANTS the Motion to Sever as
follows . It is hereby:

        ORDERED that Daniel W. Warren shall restate the claims set forth in his Motion to
Sever as a new Original Petition by December 1, 2014 and complete service pursuant to the rules
that would apply to a new lawsuit. It is further,

        ORDERED that the Court Clerk assign Cause No . 425 ,576-401 to Daniel W. Warren ' s
new Original Petition. It is further,

        ORDERED that Daniel W. Warren file all future pleadings, motions, and other papers
under Cause No. 425 ,576-401 as Petitioner rather than Intervenor. It is further,

        ORDERED that all prior discovery, orders, motions, responses and answers pertaining to
Daniel W. Warren in Cause No. 425 ,577 shall apply in the same manner as if such had occurred
in Cause No. 425 ,576-401, and that the Clerk of this Court is hereby directed to transfer and file
copies of the following pleadings and orders from Cause No. 425,577 to Cause No. 425 ,576-401:

        I.      Daniel W. Warren' s Original Petition in Intervention; docket entry date 4-22-14
        2.      Andy Weiner' s Motion for Partial Summary Judgment (a copy of which shall
                remain filed in Cause No. 425 ,577); docket entry date 7-15-14
        3.      Andy Weiner' s Special Exceptions to the Original Petition in Intervention filed by
                Daniel W. Warren; docket entry date 8-5-14
        4.      Notice of Submission of Andy Weiner ' s Motion for Partial Summary Judgment (a
                copy of which shall remain filed in Cause No. 425 ,577); docket entry date 8-5-14
        5.       Petitioners ' Notice of Nonsuit Against Katherine Warren (a copy of which shall
                 remain filed in Cause No. 425 ,577); docket entry date 8-7-14

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                                                                                                A
6.    Andy Weiner' s Motion to Compel Depositions (a copy of which shall remain
      filed in Cause No . 425 ,577); docket entry date 8-14-14
7.    Petitioners ' Joint Motion for Partial Summary Judgment (a copy of which shall
      remain filed in Cause No. 425 ,577); docket entry date 7-1-14
8.    Motion for Continuance of Hearing on Motion for Pruiial Summary Judgment (a
      copy of which shall remain filed in Cause No . 425 ,577); docket entry date 8-14-
      14
9.    Petitioners' Response to Andy Weiner' s Motion to Compel (a copy of which shall
      remain filed in Cause No . 425 ,577); docket entry date 8-18-14
10.   Andy Weiner' s Special Exceptions to Petitioners ' Joint Motion for Partial
      Summary Judgment (a copy of which shall remain filed in Cause No. 425 ,577);
      docket entry date 8-22-14
11.   Petitioners' Response to Andy Weiner' s Motion for Continuance (a copy of
      which shall remain filed in Cause No. 425 ,577); docket entry date 8-25-14
12.   Petitioners ' Response to Andy Weiner' s Special Exceptions to Petitioners' Joint
      Motion for Partial Swnmary Judgment (a copy of which shall remain filed in
      Cause No. 425 ,577); docket entry date 8-25-14
13.   Order Granting Andy Weiner' s Special Exceptions to the Original Petition in
      Intervention filed by Daniel W. Warren; docket entry date 8-29-14
14.   Order Denying Motion for Sanctions; docket entry date 8-29-14
15.   Order Pruiially Grru1ting and Partially Denying Andy Weiner's Special
      Exceptions to Petitioners' Joint Motion for Pruiial Summary Judgment (a copy of
      which shall remain filed in Cause No . 425 ,577) ; docket entry date 9-4-14
16.   Daniel W. Warren ' s Motion to Sever; docket entry date 9-8-14
17.   Order Partially Granting at1d Partially Denying Andy Weiner' s Motion for Partial
      Summary Judgment (a copy of which shall remain filed in Cause No. 425 ,577);
      docket entry date 9-26-14
18.   Order Granting Motion to Sever; signed 11-5-14
19.   Cowi' s Docket Sheet; docket entry date 8-29-14

20.   Andy Weiner's First Supplement To Original Answer; docket entry date 7-8-14

21.   Petitioner' s Response to Andy Weiner' s Motion for Pariial Traditional Swnmru·y
      Judgment; docket entry date 8-5-14;

22.   Petitioner' s Application to Quash Deposition of Dru1iel WatTen; docket entry date
      8-11-14;

23.   Order to Compel Depositions Granted; docket entry date 8-29-14; and

24.   Petitioner' s Responses to Andy Weiner' s Special Exceptions to Petition        111
                  Intervention and Motion for Sanctions; docket entry date 8-19-14.

 It is further,

       ORDERED that Cause No. 425,576-401 is subject to the deadlines set out in the Agreed
Docket Control Order dated August 27, 2014 relating to Cause No. 425,577. It is further,

       ORDERED that all costs related to the copying, transfer, and filing of items 1 through 24
herein be assessed against Daniel Warren. It is further,

       ORDERED that if Daniel W. Warren fails to file a new Original Petition by the 1st day of
December, 2014 as Cause No. 425 ,576-401 , his pleading in Cause No. 425,577 will be
dismissed.



       SIGNED on this _JJ_ day of f'J~                     , 2014.




                                                      PRESIDING JUDGE
                   DANIEL STEVEN WEINER 1996 TRUST


     By this trust agreement, Andy I. Weiner and Katherine Friedman
Weiner, husband and wife, both of Harris County, Texas, as
"trustors," establish the Daniel steven Weiner 1996 Trust for the
benefit of their son, Daniel Steven Weiner ("Daniel"), born
March 11, 1996.   Trustors grant, assign and deliver to Andy I.
Weiner and Katherine Friedman Weiner, both of Harris County, Texas,
as "trustees," the property described in Attachment A. Attachment
A, which is captioned "Initial Contributions to the Daniel Steven
Weiner 1996 Trust," is incorporated by reference as a part of this
trust agreement.
     This trust agreement and the trusts established by it are
irrevocable.   No person shall have the right to revoke or amend
this trust agreement or any of its provisions. However, property
acceptable to the trustee may be added to any trust from time to
time in the future by trustors or by any other person (including
additions pursuant to the provisions of the last will of any
person).

     All references to "trustee" shall refer to the person or
persons then acting as such.
     A.    PRIMARY TRUST

A-1.   Distributions . The income of the trust may be accumulated
and retained, in whole or in part, or the trustee may distribute to
Daniel, from time to time, so much or all of the trust estate as,
in the trustee's discretion, is in Daniel's best interests.

A-2.   Termination.  Daniel may withdraw any part or all of the
trust estate within 60 days after he becomes age 21, and may
thereby terminate the trust as to the part withdrawn.    Exercise of
this withdrawal right shall be by one or more written instruments
delivered to the trustee within the 60-day period.    If or to the
extent that Daniel does not exercise this withdrawal right, the
trust shall continue until Daniel becomes age 30 or dies before
that age, at which time the trust estate shall be distributed:

     (a)    To Daniel.

     (b) If Daniel is not then living, to such one or more
persons, corporations or organizations (including Daniel's estate) ,
as Daniel appoints by a will which specifically refers to this
power of appointment.    If or to the extent that Daniel does not
effectively exercise this power of appointment, the trust estate
shall be distributed:

     (1)    To Daniel's descendants.
     (2)  If none of Daniel's descendants is then living, to
trustors' descendants.                                    . .............. .
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                                                                   B
     ( 3) If none of trusters'      descendants   is   then living,   to
trusters' heirs.
A-3. Payment of Taxes.     If Daniel's will contains no contrary
directions, the trustee shall pay from the trust estate the entire
increment in taxes payable by reason of Daniel's death (including
any interest or penalties thereon) to the extent (if any) that the
total of such taxes is greater than would have been imposed if no
portion of the trust estate were taken into account in determining
such taxes.

     B.    CONTINGENT TRUSTS
B-1. Trusts Established. Any portion of a trust estate upon the
trusts termination (other than a portion withdrawn by Daniel
pursuant to Paragraph A-2) which would be distributable to a
beneficiary who is under age 30 or to a beneficiary who is under a
legal disability instead shall be distributed to the trustee of a
Contingent Trust (unless otherwise directed by the valid exercise
of a power of appointment) .       Each beneficiary's portion so
distributed shall be held and administered as the initial trust
estate of a separate trust for the beneficiary.      However, if a
Contingent Trust is already in existence for that beneficiary, any
additional portion to be distributed to the trustee of a Contingent
Trust for the beneficiary shall be added to the trust estate of the
existing contingent Trust.
B-2. Distributions.      The income of each Contingent Trust may be
accumulated and retained, in whole or in part, or the trustee may
distribute to the beneficiary for whom the trust was established,
from time to time, so much or all of the trust estate as, in the
trustee's discretion, is in the beneficiary's best interests.

B-3. Termination. Each Contingent Trust shall terminate when the
beneficiary for whom the trust was established has become age 30
and is under no legal disability or upon the beneficiary's earlier
death. Upon termination, the trust estate shall be distributed:

     (a)    To the beneficiary.

     (b)  If the beneficiary is not then living, to such one or
more persons, corporations or organizations as the beneficiary
appoints by a will which specifically refers to this power of
appointment.   If none of the beneficiary's descendants is then
living, this power may not be exercised in favor of the
beneficiary, the beneficiary's estate, the beneficiary's creditors
or the creditors of the beneficiary's estate. If or to the extent
that the beneficiary does not effectively exercise this power of
appointment, the trust estate shall be distributed:

     (1)   To the beneficiary's descendants.


                                  -2-
     (2) If none of the beneficiary's descendants is then living,
to the descendants of the beneficiary's nearest ancestor who was
one of trustors' descendants and who has descendants then living.
     (3)  If none of these persons is then living, to trusters,
descendants.
     ( 4) If none of trusters'    descendants   is then   living,   to
trusters' heirs.
       C.   DISTRIBUTIONS
c-1. Distributions to or for Beneficiaries. During the term of a
trust, any distribution to be made to a beneficiary from the trust
may be made (i) to the beneficiary, (ii) if the beneficiary is
under a legal disability or if the trustee determines that the
beneficiary is unable to properly manage his affairs, to a person
furnishing support, maintenance or education for the beneficiary or
with whom the beneficiary is residing, for expenditure on the
beneficiary's behalf, or (iii) to a custodian for a minor
beneficiary, as selected by the trustee, under the Uniform Gifts to
Minors Act of any state. Alternatively, the trustee may otherwise
apply all or a part of the distribution for the beneficiary's
benefit. However, no such distribution shall be made to a trustor,
to any spouse of a trustor, or in any manner that discharges a
legal obligation (including an obligation of support) of a trustor
or any spouse of a trustor. Any distribution under this paragraph
shall be a full discharge of the trustee with respect thereto.

c-2.  Best Interests of Beneficiary.    In making distributions in
the "best interests" of a beneficiary, the trustee may consider the
age of the beneficiary, the costs of the beneficiary's support,
maintenance, education and comfort without regard to any other
resources available to the beneficiary for these purposes, the
effect of any distribution upon the income and transfer tax
liability of the beneficiary or of the trust, and any other factors
deemed relevant by the trustee.

       D.   OFFICE OF TRUSTEE

D-1.   Successor Trustee, Co-Trustee.  The following provisions
shall apply to each separate trust established under this trust
agreement:

      (a) Successor Trustee.  Should Andy I. Weiner or Katherine
Friedman Weiner cease to act as trustee, for any reason, the one
remaining shall continue to act as trustee.   Should both Andy I.
Weiner and Katherine Friedman Weiner cease to act as trustees, for
any reason, trustors appoint Bayle Weiner Drubel as successor
trustee.


                                -3-
     (b) Appointment of Successor Trustee by Trustee. At any time
after qualifying as trustee, any trustee may appoint a successor
trustee to act in his place, either immediately or in the future
upon any stated contingency, and may thereby supplement the
provisions of subparagraph (a).
      (c) Appointment of Successor Trustee by Beneficiaries. If at
any time there is no trustee acting and none has been appointed, a
majority of the beneficiaries (acting through the beneficiary's
natural or legal guardian or legal representative, in the case of
a beneficiary under a legal disability) who might then be entitled
to receive a distribution from the trust estate shall appoint a
successor trustee.
     (d)   Appointment of Co-Trustee.   The     trustee    (acting
unanimously if more than one) may appoint one or more co-trustees.
     (e) Who May Be Appointed. A successor trustee or co-trustee
may be any individual, bank or trust company and may be domiciled
anywhere.
      (f) Procedure for Appointment. Appointment shall be made by
written instrument filed with the trust records.          Any such
appointment may be changed or revoked prior to the date it becomes
effective.   Any such appointment may be limited in any manner
deemed advisable by the person making the appointment, including,
for example, restricting the power over distributions as necessary
to avoid the imposition of any tax upon the trust, the appointee or
the appointee's estate.
D-2. Resignation of Trustee. A trustee may resign from a trust
without the necessity of any court proceeding upon meeting these
conditions:
     (a) Notice. At least 30 days' written notice       (if not waived)
shall be given to each beneficiary who might then       be entitled to
receive a distribution from the trust estate. If a      beneficiary is
under a legal disability, notice shall be given to       (or waived by)
the beneficiary's natural or legal guardian.
     (b)   Accounting.   If and to the extent required by the
successor trustee, an accounting for the administration of the
trust shall be given to the successor trustee.      The successor
trustee shall be fully protected in relying upon such accounting.
D-3.   Rights and Liabilities.

       (a) Bond Not Required. No bond or other security shall be
       required of any trustee.

       (b)   Liabilities.   This agreement shall always be construed in


                                   -4-
favor of the validity of any act by or omission of any trustee. A
trustee shall not be liable for any act or omission except in the
case of gross negligence, bad faith or fraud.     Specifically, in
assessing the propriety of any investment of a trust estate, the
overall performance of the entire trust estate shall be taken into
account.

     (c)  Compensation. Each trustee shall be entitled to receive
reasonable compensation for services actually rendered to a trust.

     E.   ADMINISTRATION

E-1. General Powers of Trustee. To carry out the trust purposes
but subject to any limitations stated elsewhere herein, the trustee
of each trust shall have the following powers, which may be
exercised free from court supervision, and which shall exist until
all of the trust estate has been distributed:

     (a)  Trust Estate. The trustee may invest and reinvest all or
any part of the trust estate in property of any description and may
retain as a part of the trust estate any property acquired at any
time and in any manner.   Specifically, and without regard to the
provisions of any applicable state law, the trustee may retain, or
invest and reinvest in, property unproductive of income, shares of
open or closed end investment trusts or companies, wasting assets,
and any other property, regardless of location and without regard
to any requirement of diversification as to kind or amount.

     (b)   Business Interests. The trustee may continue operation
of any business entity, in any business form, with all or any part
of the trust estate, and may reorganize or liquidate any such
entity at any time.

      (c) Transfers, Loans. The trustee may lease, sell, transfer,
or encumber in any manner {including with purchase money mortgages)
all or any part of the trust estate, and may loan or borrow money
in any manner {including by joint and several obligations) with or
without security. Subject to the provisions of Paragraph E-3{a),
the trustee may purchase assets from the estate of a trustor and
may loan funds to the estate of a trustor at such rate of interest
and with such security as the trustee determines to be in the best
interests of the current beneficiaries of the trust.

      {d) Dealings With Related Parties. The trustee may deal with
any person or entity regardless of any relationship or identity of
any trustee to or with that person or entity and may hold or invest
all or any part of the trust estate in common or undivided
interests with that person or entity.

     (e) Agents, Employees. The trustee may employ and compensate
agents and other employees ~nd may delegate to them any and all
discretions and powers.

                                -5-
     (f) Partitions, Distributions. The trustee may partition all
or any part of any interest, may pay and receive such moneys or
properties as may be necessary to equalize differences, and in so
doing (i) may make any distribution of all or any part of the trust
estate in any manner (including composing shares differently) and
(ii) may evaluate any property, which valuation shall be binding on
all beneficiaries.
     (g)   Claims, Controversies.    The trustee may maintain and
defend any claim or controversy by or against the trust without the
joinder or consent of any beneficiary.
      (h)    Additional Powers. In addition, the trustee shall have
all rights, privileges and powers now or hereafter granted to
trustees in Texas, including those granted under the Texas Trust
Code.     Any subsequent legislation or regulation expanding or
limiting the rights, privileges and powers granted a trustee shall
apply to all trusts hereunder unless the trustee elects not to have
such legislation or regulation apply to a particular trust by a
written instrument filed with the trust records.       However, the
provisions made for the various beneficiaries under this trust
agreement are exclusive. Any statute that purports to enlarge the
class of beneficiaries to whom distributions may be made or the
purposes for which distributions may be made shall not apply to any
trust.    All trust powers may be exercised upon such terms as the
trustee deems advisable and may affect trust properties for any
length of time regardless of the duration of the trust. Generally,
and subject only to the terms of this trust agreement, the trustee
shall hold, manage, control, use, invest, reinvest, and dispose of
the trust estate to the same extent as if the trustee were the fee
simple owner thereof.
E-2.     Principal and Income Determinations.      The receipts,
disbursements and reserves of each trust may be allocated, on a
cash or accrual basis, between principal and income in the
trustee's discretion without regard to the provisions of any
statute.    To the extent the trustee does not exercise this
discretionary power, the provisions of the Texas Trust Code shall
control.
E-3.   Restrictions on the Exercise of Certain Powers.
      (a)  Dealings with Trust Estate. No power granted the trustee
shall be construed to enable any person to purchase, exchange, or
otherwise deal with or dispose of any trust estate for less than an
adequate consideration in money or money's worth or to authorize
loans to any person without adequate interest.      No part of any
trust estate may be (i) loaned to a trustor or to any spouse of a
trustor or (ii) applied to the payment of premiums on policies of
insurance on the life of a trustor or on the life of any spouse of
a trustor.

                                -6-
      (b)  Distributions to or for Trustee. Any power to make
discretionary distributions to or for the benefit of a person who
is serving as trustee of a trust (including distributions to the
person's spouse and distributions in discharge of any legal
obligation of the person) shall be exercisable solely by the
trustee or trustees other than that person. If no other trustee is
then serving, such power shall not be exercisable.

E-4. Release and Delegations of Powers. Any power granted to a
trustee may be released, in whole or in part, temporarily or
permanently. Except as provided in Paragraph E-3, any such power
may be delegated, in whole or in part, temporarily or permanently,
to any other trustee then acting. A release or delegation shall be
by written instrument filed with the records of each trust to which
the release or delegation applies.
     F.   DEFINITIONS AND GENERAL PROVISIONS
F-1. Trust Estate.   "Trust estate" means all assets, however and
whenever acquired (including income and accumulated income), which
may belong to a trust at any given time.

F-2. Descendants. "Descendants" means the legitimate children of
the person or persons designated and the legitimate lineal
descendants of such children, and includes any person adopted
before becoming age 18 and the adopted person's descendants.      A
posthumous child shall be considered as living at the death of his
parent. Whenever a distribution is to be made to the descendants
of any person, the property to be distributed shall be divided into
as many equal shares as there are living children of the person and
deceased children of the person who left descendants who are then
living.  Each living child shall take one share and the share of
each deceased child shall be divided among his then living
descendants in the same manner.   "Trusters' descendants" includes
only those persons descended from both trusters.
F-3.   Heirs.   Any distribution to be made to the "heirs" of a
person shall be made to the individuals who would have inherited
the person's personal property if the person had died intestate at
the time the distribution is to be made, domiciled in Texas and not
married, under the laws of Texas in force on the effective date of
this trust agreement, with the shares of taking determined by those
laws. However, both trusters and any spouse of a trustor shall be
deemed to have died prior to the time that any such distribution is
to be made. A distribution to "trusters' heirs" shall be made to
the heirs of Andy I. Weiner.
F-4. Internal Revenue Code.    "Internal Revenue Code" means the
Internal Revenue Code of 1986, as amended, or corresponding
provisions of any subsequent federal tax laws.



                               -7-
F-5. Other Terms. The use of any gender includes the other
genders, and the use of either the singular or the plural includes
the other.
F-6. Spendthrift Provision. No beneficiary shall have the power
to anticipate, encumber, or transfer his interest in any trust
estate in any manner. No part of any trust estate shall be liable
for or charged with any debts, contracts, liabilities or torts of
a beneficiary or subject to seizure or other process by any
creditor of a beneficiary.    Nothing in this paragraph shall be
construed to limit the otherwise valid exercise of a power of
appointment or right of withdrawal given by this trust agreement.

F-7. Texas Law Applies. The situs of the trusts established under
this trust agreement is Texas.     Wherever possible, the laws of
Texas shall apply to the construction, administration and validity
of each trust.
F-8. Maximum Term of Trusts. No trust shall continue for a period
longer than 21 years after the death of the last to die of trustors
and all of trustors' descendants who are living on the effective
date of this trust agreement. Any trust still in force at the end
of such period shall terminate, and the trust estate shall be
distributed to the beneficiary for whom the trust was established.
F-9.   Powers of Appointment Exercisable by Beneficiaries.       In
exercising a power of appointment given to a beneficiary by this
trust agreement, the beneficiary may appoint the property subject
to the power outright to the appointee, in trust, or to a custodian
for the appointee under the Uniform Gifts to Minors Act of any
state. If the beneficiary appoints to a custodian, he may select
the custodian. If the beneficiary appoints in trust, he may select
the trustee or trustees, may establish such administrative terms
for the trust as he deems appropriate, and may impose lawful
spendthrift restrictions.   He may give the trustee discretionary
powers over the income and principal, and may create a trust that
has several permissible distributees. He may create life interests
or other limited interests in some appointees with future interests
in favor of other appointees, may appoint different types of
interests among the appointees, and may create new powers of
appointment in a trustee or trustees or in any appointee. He may
impose lawful conditions on an appointment and,, in general, may
appoint to or among the appointees in any lawful manner.
In determining whether, in what manner and to what extent a
testamentary power of appointment has been exercised by a
beneficiary, the trustee may act in reliance upon a court order
admitting an instrument to probate as the beneficiary's last will
or an order finding that the beneficiary died intestate.     Unless
within six months after the beneficiary's death the trustee has
actual notice of the existence of proceedings to probate a will of
the beneficiary, the trustee shall assume that the beneficiary died
                                -8-
intestate. The foregoing provisions are intended to expedite the
prompt and efficient administration of the trust and to protect the
trustee from any action taken or distribution made in accordance
with these provisions.   Nothing in this paragraph shall limit or
qualify any power of appointment given by this trust agreement or
any right which an appointee or taker in default of appointment may
have against any person receiving a distribution from the trustee
irrespective of the place of probate or of the time of discovery of
a will exercising the power or any other action taken in the
beneficiary's estate.

     G.   ACCEPTANCE BY TRUSTEE

By signing this trust agreement, the trustee (i) accepts these
trusts and all of the rights, powers and duties attached to the
office of trustee as provided herein, (ii) agrees to serve as
trustee of the Daniel Steven Weiner 1996 Trust and of any
Contingent Trusts which may be established under this trust
agreement, (iii) acknowledges receipt of the property described in
Attachment A, and (iv) agrees to hold and administer each trust
estate in accordance with the terms of this trust agreement.
    This trust agreement is executed effective as of the 20th day
of March, 1996.


                              Andy I. Weiner, Trustor and
                              Trustee


                              Katherine Friedman Weiner,
                              Trustor and Trustee




                                  -9-
                        ATTACHMENT A: INITIAL CONTRIBUTIONS
                       TO THE DANIEL STEVEN WEINER 1996 TRUST




                                       $1.00




                                       Andy I. Weiner, Trustor and
                                       Trustee



                                       Katherine Friedman Weiner,
                                       Trustor and Trustee
3559 :painsc\0157136




                                       -10-
                                                                                                        FILED
                                                                                        10/24/201410:21:50AM
                                                                                                  Stan Stanart
                                                                                                  County Clerk
                                                                                                 Harris County


                                                                          PROBATE COURT 4
                                           NO. 425,577

INRE:                                          §                  IN PROBATE COURT
                                               §
DAVID ABRAHAM WEINER                           §                  NUMBER FOUR (4) OF
                                               §
1994 TRUST                                     §                  HARRIS COUNTY, TEXAS

                   ANDY WEINER'S SECOND AMENDED CROSS-CLAIMS
                 AGAINST KATHERINE WARREN F/K/A KATHERINE WEINER

TO THE HONORABLE JUDGE OF SAID COURT:

        Andy Weiner ("Mr. Weiner") files the following Second Amended Cross-Claim Against

Katherine F. Warren f/k/a Katherine Weiner ("Ms. Warren"), and, in support thereof,

respectfully shows the following:

                                                I.
                                            Overview

1.       Mr. Weiner and Ms. Warren are co-trustees of the David Abraham Weiner 1994 Trust

("David's Trust"). Mr. Weiner and Ms. Warren are likewise co-trustees of the Daniel Stephen

Weiner 1996 Trust ("Daniel's Trust").       As such, Mr. Weiner and Ms. Warren are jointly

responsible for the administration and liabilities of David's Trust and Daniel's Trust

(collectively, the "Trusts"), if any.

2.       Accordingly, Mr. Weiner files the following cross-claims against Ms. Warren:

         a. Contribution;
         b. Breaches of Fiduciary Duty;
         c. Removal of Trustee; and
         d. Tortious Interference with Administration.

                                                 II.
                                        Factual Background

3.       On December 13, 1994, Mr. Weiner and Ms. Warren established David's Trust for the

benefit of their then-minor son, David. See David Abraham Weiner 1994 Trust agreement,

                                                                                                     EXHIBIT
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092865/000002
376 -1273851vl                                                                                         TAB M
attached hereto as Exhibit A and incorporated by this reference. The irrevocable trust agreement

provides that David is the primary beneficiary and Mr. Weiner and Ms. Warren are the co-

trustees.

4.       On March 11, 1996, Mr. Weiner and Ms. Warren established Daniel's Trust for the

benefit of their then-minor son, Daniel S. Weiner ("Daniel"). See Daniel Steven Weiner 1996

Trust, attached hereto as Exhibit B and incorporated by this reference. The irrevocable trust

agreement provides that Daniel is the primary beneficiary and Mr. Weiner and Ms. Warren are

the original co-trustees. Exhibit B.

5.       Both David's Trust agreement and Daniel's Trust agreement specifically provide that:

         a.      Ms. Warren and Mr. Weiner are to act jointly as co-trustees;
         b.      A trustee shall not be held liable for any act or omission, except in the case of
                 gross negligence, bad faith or fraud; and
         c.      The overall performance of the Trust shall be taken into account when assessing
                 the propriety of any investment of the Trust.

See Exhibits A and B.

6.       Additionally, the agreements of the Trusts grant Ms. Warren and Mr. Weiner, as co-
                                                                                          1
trustees of the Trusts, the general powers to: (i) invest and reinvest the Trust assets    ;   (ii) lease,

sell, transfer or encumber, in any manner, all or any part of the Trust 2 ; and (iii) loan or borrow

money from the Trust, in any manner. 3

7.       Ms. Warren and David's original lawsuit, filed solely against Mr. Weiner, sought an

order from this Court to either distribute David's Trust funds to David free of trust or,

alternatively, to award Ms. Warren sole and exclusive control over a new account (a Uniform

Transfers to Minors Act account created for David's benefit), even though the Trust agreement


1
  Exhibit A§ E-l(a); Exhibit B § E-l(a).
2
  Exhibit A§ E-l(c); Exhibit B § E·l(a).
3
  Exhibit A§ E-l(c); Exhibit B § E-l(a).


                                                  2
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376- 127385lvl
and the Divorce Decree provide otherwise. In the original Petition, Ms. Warren and David stated

that Ms. Warren would submit an accounting and sought her discharge from any liabilities

relating to the Trust.

8.       Since originally filed, counsel for Ms. Warren and David has filed an amended petition

that now names only David as the Petitioner, ·and Mr. Weiner and Ms. Warren as Respondents.

In the amended petition, David instead sought to be his own trustee.

9.       David testified in his partial deposition that he is not aware of any breaches of trust by

either Mr. Weiner or Ms. Warren. Irrespective of this testimony under oath, David filed yet

another amended petition asserting various claims solely against Mr. Weiner, even though both

Mr. Weiner and Ms. Warren have served as co-trustees since the inception of David's Trust.

10.      Since the filing of David's second amended petition, Daniel, David's younger brother,
                                                                  4
filed an original petition in intervention in this proceeding.

II.      As co-trustees of the Trust, Mr. Weiner and Ms. Warren are jointly responsible for the

administration of the Trust. Accordingly, in the event damages are assessed against Mr. Weiner

due to his role as co-trustee of David's Trust and/or Daniel's Trust, Ms. Warren is responsible

for 50% of those damages, in addition to 50% of Mr. Weiner's attorneys' fees and costs incurred

in defending this action.

                                                     III.
                              Cross-Claims Against Katherine Warren

12.      Mr. Weiner incorporates by reference the factual allegations contained within the

preceding Paragraphs 1 through 11.




4
 Mr. Weiner does not concede that Daniel has standing to bring any claims against Mr. Weiner in this proceeding
nor does Mr. Weiner agree with Daniel's alleged legal basis to intervene in the above-referenced proceeding.


                                                      3
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376- 127385lvl
        A.       Cross-Claim for Contribution.

13.     In David's Second Amended Petition, he seeks to hold Mr. Weiner liable for breaches of

fiduciary duty in his capacity as David's Trust. See Second Amended Petition at         ~14,    on file

with this Court.

14.     Likewise, in Daniel's Petition in Intervention, Daniel seeks to hold Mr. Weiner liable for

breaches of fiduciary duty in his capacity as co-trustee of Daniel's Trust.         See Petition in

Intervention at ~34, on file with this Court.

15.     It is undisputed that Mr. Weiner and Ms. Warren were named as initial co-trustees of

both David's Trust and Daniel's Trust. Pursuant to Texas Property (Trust) Code, co-trustees are

to act jointly in administering the Trust. TEX. PROP. CODE § 113.085. Ms. Warren has failed to

jointly administer the Trusts with Mr. Weiner.

16.      Further, Ms. Warren has failed to delegate her powers or duties as co-trustee of the Trusts

to Mr. Weiner. Pursuant to Texas Property (Trust) Code Section 113.085(c):

                 (c)      A co-trustee shall participate in the performance of a trustee's
                 function unless the co-trustee:
                          ( 1) is unavailable to perform the function because of absence,
                 illness, disqualification under other law, or other temporary incapacity; or
                          (2) has delegated the performance of the function to another
                 trustee in accordance with the terms of the trust or applicable law, has
                 communicated the delegation to all other co-trustees, and has filed the
                 delegation in the records of the trust.

TEX. PROP. CODE§ 113.085 (c) (emphasis added).

17.      And, the Trusts expressly provide that a co-trustee may only release or delegate her

powers as follows:

                 E-4. Release and Delegations of Powers. Any power granted to a trustee
                 may be released, in whole or in part, temporarily or permanently. Except
                 as provided in Paragraph E-3, any such power may be delegated, in whole
                 or in part, temporarily or permanently, to any other trustee then acting. A




                                                  4
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376- 127385Jvl
1:0                    release or delegation shall be by written instrument filed with the records
                       of each trust to which the release or delegation applies.

      See Exhibit A § E-4 (emphasis added); Exhibit B § E-4 (emphasis added).

      18.       Ms. Warren never communicated any intent to delegate her co-trustee duties to Mr.

      Weiner nor has she filed a written instrument delegating or releasing any powers to Mr. Weiner,

      as required by the terms of the Trusts. In short, there is no evidence that Ms. Warren has

      delegated the performance of her co-trustee functions to Mr. Weiner.          TEX. PROP. CODE §

      113.085(c)(2).

      19.       Mr. Weiner seeks to hold Ms. Warren responsible for 50% of any liabilities assessed

      against the Trusts and/or him relating to the actions sought by any beneficiary, including, but not

      limited to, holding Ms. Warren liable for 50% of the attorneys' fees, accountant fees, and costs

      incurred by Mr. Weiner as a result ofthe above-referenced litigation.

      20.       Thus, pursuant to Section 33.016 of the Texas Civil Practice & Remedies Code, Mr.

      Weiner asserts a contribution claim against Ms. Warren for any liability that may be imposed on

      him pursuant to the breach of fiduciary duty claims brought by David and/or Daniel in the instant

      litigation.

                B.     Cross-Claim for Breaches of Fiduciary Duty.

      21.       Ms. Warren, as co-trustee, serves in various fiduciary capacities for David and Daniel.

      Trustees are held to a "very high and very strict standard of conduct which equity demands".

      Slay v. Burnett's Trust, 187 S.W.2d 377,387-88 (Tex. 1945).

      22. _ As a fiduciary and co-trustee of the Trusts, Ms. Warren has breached the following

      duties:

                a. Duty of loyalty;
                b. Duty of competence;
                c. Duty of competence by failing to administer the Trusts pursuant to their terms;


                                                        5
      092865/000002
      376- 1273851v1
         d. Duty of full disclosure;
         e. Duty to act with integrity of the strictest kind;
         f.      Duty to act with due diligence;
         g. Duty to exercise reasonable discretion; and
         h. Duty to act as a reasonably prudent person.

23.      Ms. Warren breached her fiduciary duties, which resulted in injury.

24.      Thus, in accordance with recognized principles of fiduciary law, Mr. Weiner seeks an

award of actual damages and, since Ms. Warren's conduct was intentional, punitive damages.

         c.         Cross-Claim for the Removal of Ms. Warren as Trustee.

25.      Ms. Warren, through her hostile actions and position of influence, has turned both Daniel

and David against their father, Mr. Weiner. Despite Mr. Weiner's valiant attempts, Ms. Warren

has failed and refused to engage with Mr. Weiner to administer the Trusts.

26.      By these acts, Ms. Warren has created a hostile environment for David, Daniel and Mr.

Weiner.

27.      Accordingly, Mr. Weiner files this cross-claim for the removal of Ms. Warren as trustee

of the Trusts.

         D.         Cross-Claim for Tortious Interference with Administration.

28.      Through her actions, Ms. Warren has tortiously interfered with Mr. Weiner's ability to

properly administer the Trusts. Ms. Warren has interfered with the administration of the Trusts

by initiating unnecessary litigious proceedings against Mr. Weiner, by and through David and

Daniel, and continuously failing to act in the best interests of David and Daniel, to the detriment

ofMr. Weiner.

29.      Such acts have proximately caused and prevented and interfered with the ability of Mr.

Weiner to properly administer Decedent's Estate.




                                                   6
092865/000002
376- 1273851vl                  ..
       30.      Ms. Warren's acts have resulted in the incurrence of unnecessary expenses, damages or

       loss to the Trusts, for which recovery from her is proper in an amount within the jurisdictional
c~.o
       limits of the Court.

       31.      Mr. Weiner seeks actual and punitive damages for Ms. Warren's tortious interference with

       administration and for her intentional and malicious conduct.

                                                   IV.
                                     Damages and Other Relief Requested

       32.      Mr. Weiner re-alleges and incorporates by reference the foregoing background

       allegations and causes of action in support of the damages sought below.

                A.      Actual Damages.

       33.      Based on the acts and occurrences set forth in the preceding paragraphs, Ms. Warren

       breached her fiduciary duties, proximately causing significant loss to the Trusts and actual

       damages to the Trusts.

       34.      As a result of Ms. Warren's breaches of fiduciary duties, tortious interference with

       administration, and bad acts constituting her removal as trustee of the Trusts, which were the

       proximate cause of damages to Mr. Weiner and the Trusts, Mr. Weiner is entitled to damages

       from Ms. Warren.

                B.      Punitive Damages.

       35.      As a result of Ms. Warren's intentional and willful breaches of fiduciary duty and tortious

       interference with administration, Mr. Weiner seeks punitive damages from Ms. Warren.

                C.      Additional Relief Sought.

       36.      Mr. Weiner is entitled to pre-judgment and post-judgment interest and costs of court in

       all amounts awarded hereunder as allowed by law. He specifically sues for recovery of pre-

       judgment and post-judgment interest and recovery of costs of court under the applicable



                                                         7
       092865/000002
       376- 1273851v1
           provisions ofthe laws ofthe State ofTexas.

           37.      With regard to claims by David and/or related to David's Trust, Mr. Weiner, individually

           and as co-trustee, respectfully requests the following relief:

                    a.      To the extent of any claims of David, Ms. Warren shall be held responsible for all
                            actions and alleged inactions of the trustees;

I   '\1'            b.      To the extent of any claims of David, Ms. Warren shall be held equally liable for
                            all claimed damages and relief sought by David, as finally determined, if any;

                    c.      Ms. Warren shall be held liable for any and all violations of David's Trust
                            agreement, including any plan or scheme to collude with David;

                    d.      Ms. Warren shall be held equally responsible for the preparation and submission
                            of any accounting determined to be due and personally bear one-half of the costs
                            of the accounting pursuant to § 113.151 of the Texas Trust Code; and

                    e.      Ms. Warren shall be ordered to pay one-half of Mr. Weiner's attorneys' fees and
                            costs incurred as a result of defending the lawsuit.

           38.      With regard to claims by Daniel and/or related to Daniel's Trust, Mr. Weiner,

           individually and as co-trustee, respectfully requests the following relief:

                    a.      To the extent any claims of Daniel are validly asserted in this proceeding, Ms.
                            Warren shall be held responsible for all actions and alleged inactions of the
                            trustees;

                    b.      To the extent any claims of Daniel are validly asserted in this proceeding, Ms.
                            Warren shall be held equally liable for all claimed damages and relief sought by
                            Daniel, as finally determined, if any;

                    c.      Ms. Warren shall be held liable for any and all violations of Daniel's Trust
                            agreement, including any plan or scheme to collude with Daniel;

                    d.      Ms. Warren shall be held equally responsible for the preparation and submission
                            of any accounting determined to be due, and personally bear one-half of the costs
                            ofthe accounting pursuant to §113.151 ofthe Texas Trust Code; and

                    e.      Ms. Warren shall be ordered to pay one-half of Mr. Weiner's attorneys' fees and
                            costs incurred as a result of defending the lawsuit.




                                                             8
           092865/000002
           376- 127385lvl
        WHEREFORE, Andy Weiner respectfully requests that this Court grant the above-

requested relief, and for such other and further relief as to which he may show himself justly

entitled to receive.

                                                       Respectfully submitted,

                                                       CRAIN, CATON & JAMES,
                                                       A PROFESSIONAL CORPORATION


                                                       By: Is/ Kathleen Tanner Beduze
                                                           SARAH PATEL PACHECO
                                                           (TBA # 00788164)
                                                           KATHLEEN TANNER BEDUZE
                                                           (TBA # 24052205)
                                                           1401 McKinney, 1ih Floor
                                                           Houston, Texas 770 I 0
                                                           (713) 658-2323
                                                           (713) 658-192I (Facsimile)

                                                       Attorneys for Andy Weiner

                                CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument has been forwarded to:

Carol A. Cantrell                                    Thomas R. Conner
Cantrell & Cowan, PLLC                               Conner & Lindamood, P.C.
3700 Buffalo Speedway, Suite 520                     1221 Lamar, Suite I 010
Houston, Texas 77098                                 Houston, Texas 770 I 0
Facsimile: (713) 333-0550                            Facsimile: (7I3) 654-8I 15


bye-file and/or facsimile on the 24th day of October, 2014.

                                             Is/ Kathleen Tanner Beduze
                                             KATHLEEN TANNER BEDUZE




                                                 9
092865/000002
376- 127385Jvl
'i:4'
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~;~·                                   DAVID ABIWWf WEINBR 1994 TRUS'l'
~~~



(~)                        By this trust &~Jreeaent, Ancty I. Weiner and Katherine Friacbllan
                    Weiner, husband. aDd wfte, both Qf Rarria county, Texas, 'as
i:~                 11 truatora,• establish the David Abrahllll Weiner 1994 Trust tor the
!''"·•,             l:len'efit of their son, David Abralla• Weiner ("David•). Tz:usto:t'S
~\i                 grant, aseiCJ11 and cleliver to· Andy I. We,l.ner and Katherine FrieC!It4n
~, .,,!             Weiner; both ot Harris county, Texae, aa ntrusteoa,• the property
             (";
~~~~                described. in Attacbaent A.. Attactuaent A, which ia captione\\
             :j     "Initia~ Contributions to tbe David Abr.,halll Wei,nar 1994 'l'rust, '' is
                    incorporated by reference as a pa%t of this trust a~eemen~.
i~~.ll~l


             N
             c      This truet agrea111ent and the trusts e1tabliahed by it are
             c...   irrevocable. No person shall have the right to revoke or amend
                    this trust aqrae.ent or any of ita provisions. However, ptoperty
                    acceptable to the trustee may be added to any trust from time to
                    tt.e in the future by,truators or by any other person (including
                    aclclitiona pursuant to the prcrvialons of tha last will of any
                    person).                                               ·
                    All references to "trustee" shall ~tar to the parson or persons
                    then acting as aucb.

                                               A.   PanwtY 'J'ROST

                    A-1. giatdhutigng. The inCOIIe. of the trust lllllY be acCNIIIulatecl and
                    ratalned, in whole or in part, or tha trustee 111ay ~1atr1bute to
                    David, from tilD6 to tine, so much or all of tha trust ••~ate as, in
                    tbe trustee'& discretion, is in David's beat interests.

                    A-2. Termination. David may withdraw any part or all        of
                                                                              the tru'st
                    estate within 60 days after he l:leccmas age 21, and may thereby
                    terminate th~ trust as t~ the part withdrawn. EXercise of this
                    withdrawal right ohall bfi by one or liore written insl::rlilaenta
                    delivered to the trustee within ~he 60-cl~y period. It or' to the
                    extent that Davie! does not exercise this withdrawal riqht, the
                    trust shall continue until David becomes age 30 or dies before that
                    aqe, at whidh.time tbe trust estate sball be distributed:

                         (a) To David.
                         (b) If David is not~~en liying: to such one or more persons,
                    corporations or organi1at1ons (includi~David's estate), as ·Davi~




                                                    EXHIBIT A
 appoints by a Will which specifically raters to this power ot
 appointment. lf or to the extant that David does not effectively
 exercise this power of appolnt1Dant, the tnst estate shall be
 diatr~l1Ute4:

            (1)   To David's deaoendanta.
            (2) lf nona of Davlc!'a descendants ia than living, to
 trusters ' clascendante.
          (3) If none of truatora' descendants ia then living, to
trustor&' heirs.

A-3 • P!vaaot of '1'1¥11•  It David's will contains no contrary
direct:ons, tbe tnatee shall pay troa·tbe trust estate the entire
increment in taxes payable by reason of David's death (including
any interest or penalties thereon) to the extant (if any) that the
total of such taxes is vreater than would have bean iapoead if no
portion of tho trust estate vera taken into account in datermininv
such taxes.

                         B,   CON'l'XBGEH'l' TRUSTS

 B-1. 'l'£Usts Bstablisbad, Any portion of a trust estate upon the
 trust's teminat~on (other tban a portion withdrawn by David
 pursuant ~ Paraqraph l-2) whicb would be distributable to a
 beneficiary who is under ago 30 or to a beneficia~ who ie under a
 legal diaability instead shall be distributed to the trustee of a
 contingent Trust (unless otherwise directed by the vali4 exercise
 ot a power of appointment).            Each beneficiary'• portion eo
 distributed shall be held and administered as the initial t~ot
estate ot a separate trust tor ~· beneficiary. ·However, if a
Contingent Truat ia already in a¥iatence tor that beneficiary, any
additional portion to be distributed to the trustee of a Contingent
'l':t'\l&t tor the benaticiary shall be acldad to tho trust estate of the
ex1stin9 contingent Trust •

.8-2. ~ist;ibutlona, The inc0111e of each contingent Trust may be
accumulated and retained, in whole or in part, or the trustee may
distribute to the beneficiary for whom the trust was established,
from time to time, so mucb or all. of the trust estate ae, in the
trustee's discretion, is in the beneficiary's best interests.

B-3. Tftrmination• Eecb Contingent Trust shall terminate when the
beneficiary for whom the trust was established has beco•• aqe 30


                                   -:z-
      and is under no leqal disability or upon tho benoficia~'a earlier
      death. Opon .termination, tho tru~t estate shall be distributed:
           (a)   To the beneficiary.
           (b) If the beneficiary is not than livinq, to sucb one or
      mora persona, oorpo-rationa or orvanlzatlona aa tba beneficiary
      appointe by a will which apeaiflaalli refers to this power of
      appointment.   If none of the benaUc ary'a cleacendants is then
      living, this power may not be exercised in favor or the
...   banetioiary, the benaticiary'a aatate, the beneficiary's creditors
      or the creditors of the beneficiary's estate. It or to the extent
'
(\;   that the beneficiary does not effectively exercise tbis power or
      appointment, the trust estate shall be distributed:
                 (l)         To the beneficiary's descendants.
                 (2)   If nona of the beneficiary's cleacendanta is then
      livinq, to the descendants of the beneficiary's nearest ancestor
      who was one of truatora' deacandant$ and who haa descendants then
      living.
                 (J)   It none ot these persona is then Uvinq, to
      trustor&' descendants.
                 (4) If none of trustor~' descendants is then living, to
      trusto:rs' bel.ra.

                                      C,   DISTRIBU'l'IONS

      C-1. plat£ibftipnP tR qr for Banafigiariaa. OU:ring the tara of a
      trust, any dstri.bution to be made to a banatioiary t:roa the t:ruat
      may be 'ID&de (1} to the beneficiary, (11) if the benefioia:ry ia
      unda:r a :Laqal disability or 1! the trustee·· determines tbat, the
      beneticla:ry ie unable to properly· manage bia affaire, to a person
      furnbbinq support, aaintenance or education tor the beneficiary or
      with 1o1h011 tbe beneficiary ia residinCJ, for expancUtu:ra on the
      benetic1ary'a behalf, or (111) to a custodian for a mino~
      beneficiary, as selected by the trustee, under the Uniform Gifts to
      Minors Act of any state. Alternatively, the trustee aay otherwise
      apply all o:r a part of the distribution tor the benaticiary'a
      bena.tit. Ho1o1ever, no such dietribUtion shall be made to a trustor,
      to any spouse of a trustor, or in any manner that disch•rges a
      leqal obligation (including an oblivation of suppor~) of a t:rusto:r
      or any. spouse of a trustor. AnY .distribution under -this paragraph
      shall be a full discharge of the trustee with :respect thereto.-



                         ;
                       •·                     -:J-
C-2. p11t Interflt! of 8enafic1an, In lllakinq distributions in the
"best interests• of a beneficiary, tbe txuetee aay consider the aqe
or tbe beneficiary, the coats of the beneficiary'• aupport,
lll&ihtenanca, ecluc:ation ani! c0111tort without regard to any other
resource• available to the benlfficiary tor thaae P\UPO&ea, the
effect or any cU.atribution upon the incoaa and tranater tax
liability of the beneficiary or of the truat, enl1 any other tactora
deemed relevant by the trustee,

                       O.   OFFICE OP TRUSTEE
D-1. gucseasgr 'l'ruatee. Cp-Trvstee, The following provisions shall
apply to each separate truat established under this trust
agreamontt                 ·
      (a) guc;:caupr Trustee, Should Andy I. Wainer or Xathadrie
Friedman Weiner cease to act as truataa, for any reason, the one
reaaining ahall continue to act ea trustee. Should both. Andy I.
Wainer and Xttharine Friea.an Wainer cease to oct as trustees, for
any reason, tn1atora appoint Bayle Wainer Drubel as successor
trustee.
      (b) Appointmtnl; pt suc;gegor rryatt• by Trn•tr•· At any time
after qualify1n9 as trustee, any trustee may appo nt a successor
trustee to'act ln his place, either i~ediately or in the ruture
upon any stated continqenoy, and aoy thereby euppleaent the
provisions of aUbparagreph (a).
      (c) 6J)ppintmant of suqugsgr Tr»Dt•• bll Benofigiariaa. I f at
any time there is no trustee actin~ and none bas been appoint~d, a
majority of the benef1o1ades (acting through the llenefialary's
natural or legal guordian or leqal repreaentative, in the case of
a beneficiary under a legal disability) who might then ba entitled
to receive a distribution from the trust estate shall appoint a
successor trustee.
      (d) AppginQ!ent pC Co-Trustee,         The trustee (ectinq
unanimoualy if more than one) may appoint one or more co-trustees.
     (e) lfbo Kay Be Apppint;ed. A successor tru•tee or co-trustee
may be any individual, bank or trust company and may be domioilea
anywhere. However, neither a trustor aor any spouse Df a trustor
may be appointed ae trustee.
     (f) ngepdU[B for Appoint;mant;. Appointment shall be ude by
written instrument filed with the trust records.         Any such
appointment ••Y be changed or nvoJced prior to tbe date it becooa
effective.   Any such appointment •ay be limited in any manner
daeaed advisable by the person making the appointment, includinq,


                                 -4-
          tor exuple., restricting the power over diatri:butiona aa neoeeaary
          to avoid the 1JDpO&it1cn of any tax upon the tn.et, the BFpointee or
          the appointee'& estate.
0
(,\)      D-2. Raaiqnation of Trustee, A trustee may reaiqn fro~ a trust
·. .      without the naoees ty of eny court proceeding upon meeting theaa
r  ·:~


          conditional
              (a) ~. At least 30 daya• written notice          (if not waived)
         shall be given to each beneficiary Wbo might then     be entitled to
         receive a diatribution troa the ~rust estate. rt a    banefiolary !a
         unde~ a legal disability, notioa eball be given to    (or waived by)
         the baneficiary•a natural or laqal guardian.
               (b) . Accountinq, t f and to the extent required by tba
         successor trustee an acoovntinq tor tba adlllinistration ot the
         trust aball be given to the auocesaor 1:%ustaa.     The suoceseor
         trustee shall be tully protected in relying upon aucb accounting.

         D-3. Rights and Liabilities,
              (a) 1pn4 Not Required.      Ho b0n4 or other security shall be
         required ot any trustee.
              (b) Liahilities. This aqrae111ent shall always be construed in
         favor of the validity of any act by or OJIJ.aeion ot any trustee, A
         trustee shall not be liable tor any aot or omission exospt in the
         case of vroee neliJlige.nca, .bact faith or traucl. specifically, in
         assessing the propriety of any investment of a trust estate, the
         overall performance of the entire trust estate shall be taken into
         account~

              (o) epmqgnsatiqp. laah trustee ahall be entitled to receive
         reasonable compensation for services actually rendered to a trust.

                                  £,   ADMINISTRATION
         2•1, Ganaril Ppwarg pf TXu&tte, To carry out the trust purposes,
         but subject to any limitations stated aleeware herein, the trustee
         ot each trust sball havs tbe rolloving pavers, wbich uy be
         exeroiaed free from court aupervision, and which shall exist until
         all of the truat estate bas been distributed:
              (a) :l:ru•t lqJ;.ata, The trustee NY invest and reLnvaet all· or
         any part of the trust estate in property of any daso.ri;pticm and may
         retain as a part of tba trust estate any ~roperty acquired at any
         time and in any manner. Specifically, and without regard.~o the


                                          -5-
·proviaions of any applicable state law, ths t~atea .ay retain, or
 invest and reinvest in, property unproductiva of income, ebarae of
 open or cloaad and invaatmant t~ta or ca.paniae, wasting aaaate,
 and any otbar property, regardless of location and without regard
 to any requirement of divarslfication as to kind or amount.
      (b) Buainaaa Xptaraata, The t~stea may continue operation
of any bueinaea entity, in any business for., with all or any part
of the t~at estate, and may reo;1:9anhe or liquidate any such
entity at any time.
      (o) Transfers. Leana. The trustee uy lease, sell, transfer,
or encumber in any 11anner (includ.tnv with purcbaea 111oney aortvavea)
all or any part of the t~st estate, and aay loan or borrow money
in any aanner (includlnt by joint and a.veral obl1qat1one) w1tb or
without eecurity. Subject to the provisions of Paragraph E-J(a),
the t~stee aay purchase assets froa the estate of a trustor and
may loan funds to the estate of a truator at such rata of interest
and with such security ae the ~stee deter111inea to be in the beet
interests of the current beneficiariee of the t~et,
      (d)  Dealinqa With Balata4 Part:l.ea, The trustee uy deal with
any peraon or entity reqardleaa of any relationship or identity of
any t~stoe to or with that peraon or e~tity and may bold or invest
all or any part ot the trust estate in common or undivided
interest& with that parson or entity.
      (e) Agents. E:mployeea, 'l'he trustee may employ and compensate
aqents and other eaployaea and may delegate to them any and all
discret1onu and powers.
      (f) Partitigna. piatr!butigna, The trustee 111ay partition all
or any part or any interest, may pay and receive auoh moneys or
properties as may be naaeaaary to equalize ditferencea, and in so
doing ( 1) may aaka any distribution of all or any part of tbe trust
estate in any manner (including coaposinq shares difterently) and
(ii) may evaluate any property, wllich valuation shall be binding on
all beneficiariaa.
      (g) SUims. cgntJ>oyeraies, The trustee lllllY naintain and
det:end any claim or controversy by or aqainat tha trust without t:be
joinder or consent of any beneficiary.
      (h)   Aaditipfal Peyara. In addition, the t~atee shall have
all riqhts, privleqea and powers now or hereafter granted to
t~steea in Texas, 1nclud1nt those granted under the Texas ~at
Code.     Any subsequent legislation or requlation expandinq or
limiting the rights, privileges and powers qranted a trustee shall
apply to all trusts hereunder unless the trustee elects not to bava
such legislation or requlation apply to a particular t~at by a
()
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~~~

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en
(;)
                       written lnatrulllent filed with tba trust recorda.         However, the
j~~r                   provielons uade for the various beneficiaries under thia trust
                       a;reuent are excluaive. Any atatu~a that pu.q10rta to enlarge the
~~·rn~
                       class of beneficiaries to whom distributions may ba made or the
..   ~~:~~,,

~~::;~!
                       purposes for which distributions may be made shall not apply to any
                       trust. All trust povere may be exercised upon auoh teTaa as the
(~\!                   trustee dee~~~e adviaule and 11ay afteot truat properties tor any
r··,,                  lenqth of ti111e l'ega:rdleaa of the duration of the ti'U&t. Generally,
                       and aubjeot only to the tei'DB of this trust agreement, the truateo
("''
.,\j           ('l'j   ehell hold, menage, control, usa, invest, reinvest, end diaposa of
r::~)                  the truat estate to the aa111e extent as if tha trustee were the faa
:;m~IJI
               c.      simple owner thereof.
               ('~
               ,..
               c       1•2, f[inaipsl   and rncope Deterninationa,       The receipts,
                       diabursenenta and reserves of each trust may ba allocated, on a
               0
                       cash or acoruel basis, between principal and inoone in · tbe
                       trustee's cSJ.aoretion without re;ard to the provisions of any
                       statute.   To the extent the trustee does not axeroiae this
                       discretionary power, the proviaions of the Texas 7rust Coda shall
                       oontrol.

                       E-3. Bastrictions pn   th•   Jxarqlaa gf Cartain pqwera.
                             (a) Daglinqa yith Truat; 1191jata, No power granted tha trustee
                       shall be constzuad to enable any person to purchase, exchanqa, or
                       othe~isa deal witb or dispose of any trust estate for lea• than an
                       adequate consideration in money or 111onay•a worth or to autborila
                       loans to any person without adequate interest. No pal't of any
                       trust estate may be (i) loaned to a trustor or to any spouea of a
                       trustor or (li) applied to tba payment of premiums on policies of
                       insuranc:e on the llfa of a trustor or on the life ot any spouse of
                       a trustor.
                             (b) piatributiong tg or fpr TrU•tga.        Any power to mltlte
                       discretionary distributions to or tor the benefit of a person who
                       is serving as trustee of a trust (including distributions to tbe
                       parson's spouse and distribUtions in discha~e ot any legal
                       obligation of the person) shall be exercisable solely by tha
                       trustee or trustees other than that person. If no other trustee 1a
                       then serving, such power shall net be exercisable.

                       E-4 , Bglaase and Dalagatlgns gf Power&. AnY power granted to a
                       trustee . .y be released, in whole or in part, temporarily or
                       permane~tly. Except as provided in Paraqraph 1•3 1 any such power
                       111ay be delegated, in whole or in part, teaporarily or permanently,
                       to any other trustee then actinq. A release or delegation shall be



                                                          -7-
     by written instrument Uled with the records ot each truet to whicb
i~
     the release or ~•legation applies.

                   F.   DBPINITIONS AND CEHBRAL PROVISIONS
     r-1. Trust Batate.   11.Trust estate11 means all assets, however and
     Wbenever·acquired (inoludinv income and accumulated income), which
     may belong to a trust at any given time.

     F-2. Deapqnaanta. uoeaoandants" means tbe legitimate children of
     the person or persona designated and the legitimate lineal
     desoendanta ot ailoh children 1 and inclu!Sea any person adopte4
     betore becoming age 18 and the adopted person's deacandanta. A
     posthumous child shall ~• conJidered aa livi~q at the death pt bis
     parant, Whenever a distribution is to be ~ads to the descendants
     of any person, the property to be distributed shall be divided into
     ae many· equal shares as there a¥a livinv children ot the person and
     deceased children of tha person who left daacendanta who are tban
     livinq. Bacb_liv1nq child shall take one ahara and the share of
     eacb deceased child shall be divided a11ang his than living
     deacendanta in the same manner. llftUatora' descendants" include•
     only those persona descended from both trusters.

     r-3, IIW.!• Any distribution to .be made to !:he "heirs" ot a person
     shall be made to the individuals who would have inherited the
     parson's personal property if the parson nad died intestate at the
     time the distribution ia to be made, dOIIioiled 1n Texas and not
     married, under the laws of ~xaa in torca on tba affective data of
     this trust agreement, with the ebarea of taking datanained by those
     laws. However, both trusters and any spouse ot a trustor aball be
     detllllad to have died pdor to the t:iH that any such diStribution is
     to be made. A distribution to •trusters• heirs" shall be made to
     the hairs of Andy I. Weiner.

     r-4. Igtprnal Rayenua  cQde,   ''Internal Revenue Code" meana the
     Intlernal Revenue Code of 1!184S, ae a11ended, or corresponding
     provisions of any subsequent federal tax laws.

     P-!5, Qthar Tams.    The uae· of any gander .includes the o~er
     genders, and the use of either the sin9Ul&r or the pl~ral includes
     the other.

     F-6. spendtbrd'.ft rrgyiaipn,   No beneficiary _shall have the power to
     anticipate, anoumber, or transfer hie interest in any trust estate

                                       -a-
in any 11\aMer. No part of any trust estate shall be lial»le tor or
cbarqed w11;.h any debt&, contracts, liabilitlea or torte ot a
beneficiary or subject to seizure or other prooeae by any creditor
of a beneficiary. Nothing in this paraqraph ahall be construed to
limit the otherwise valid exercise ot a power of appoint.ent or
riqht ot withdrawal qiven by this trust aqraement.

F-7. TJ!¥11 L&Y Applian, Tho altus ot the trusts established under
this trust aqreuant ie '.rexaa. Whuever poseil:ll.a, the laws ot
Texas shall apply to the construction, administration and validity
of each trust.

:r-e. Maximum :ram of 'l"n!•tl. No t¥'\Jat shall continue for a period
longer than 21 yura aftezo tbe death of the l.aat to die of truetora
and all ot trusters' descendants who are living on the effective
date of tbis trust agreeaent. Any trust still in force at the and
of such period shall tandnate, and the trust estate shall be
distributed to the beneficiary tor whom the trust was establiabad.

~9.                                                             •   ~
exerois nt a power of appointmant given to a beneficiary by tbia
trust aqreament, the beneficiary u.y appoint the property sU])ject
to the power outright to the appointee, in trust, or to a cuetodisn
for the appointee uncter the Unifol'll Gifts to Minors Act of any
state. If the beneficiary appointe to a custodian, be may aaleat
the custodian. If the beneficiary appointe in t.Z'UIIt, be III&Y aaleot
the trustee or trustees, 111ay establish such administrative ter.s
tor the trust· liB be deel'ls appropriate, and 11ay .llllpoaa lawtul
spendthrift restrictions. Ra may give the trgstae discretionary
powers over the income end principal, and nay create a trust that
bas several permissible cUatributeea. He IIIBY create life interests
or cthor limited interests in soaa appointeea with future interests
in tavor of other appointees, 11ay appoint different typea of
interests al'Gong the appointees, and     ••Y create new powers of
appointment in a trustee or trustees or in any appointee. Ka may
impoaa lawful conditions on an appointment and, in qaneral, may
appoint to or among the appointees in any lawfUl ~anner.
In deter~~ininq whether~ .Ln what unnsr and to what extent 11
testamentary power of appointl'lant haa been exercised by a
beneficiary, the truataa nay act in reliance upon a court order
admitting an instruaent to probate as the banaficiar.f's last will
or an order finding that the benatioiary died intestate. Unless
within six 111ontlis attal' the benaUoiery's death the trustee baa
actual notice of the exiatlnca of proceedin98 to probate a will o:
the beneficiary, the trustee ahall assume that the banef1ciaey 41ed
intestate. The foregoing provisions are intended to expeditelthe
proapt and effiolent ad111lniatrat1on of the trust and to protect t'he
trustee from anr action taken or distribution •ade in accordance
with these prov aions. Nothing in tbia paragraph shall limit or
quality any power of appointaant given by this tJ:Uat ap-euant or
any rigbtwhich an appointee or taker·in default ot appointment aay
have atainat any parson reoaivin; a distribution from the tJ:Uatae
irrespective of the place of probata or of the time of diacovazy of
a will axeroialng the powor or any othor action taken in tba
benaticiary'a estate.

                        G, ACCEP'l'AlfCE BY TROSTU

By  aiqning this trust agraelllant, the tnstee (1) accepts these
trusts aftd all of the rights, powers and duties attached to the
office of trustee as prov14ed herein, (11) aqreea to serve ae
trustee of the David Abraham Mainer 1994 Truat and of any
contingent Truata which may be astabliahad under thia truet
agreement, (iii) acknowledqaa receipt of'tha property deacribed in
Attac~ent A, and (iv) aqreoo to bold and administer each trust
estate in aooordanoa with the teraa of this trust aqraament.

     This trust aqroament ia executed affective as of the
1.L day of   ~cc'1JSC            , 1994.




                                      ~~w    ~L!HaWe ft(..~~..:._
                                       erne p;ediftan ner            I

                                          Trustor ana Trustee




                                   -10-
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                     A'r'l'ACHMEN'l' A: INITIAL CON'I!RIBU't'IONS
                   '1'0 'J'HE DAVID ABlWlAJf WEINER 1994 TRUS't'
'"\I'
 ~~~11,

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f:\J                                $20,000
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                                                  tee

                                           ~:,,~~-<
                                             er n. rrediDin ...
                                              't'rustor and Trustee




                                       -11·
        STAT~     OP   TEXAS           I
        COU'N'l'Y OP JWUliS            I
 iii
 ~,          Before ••• ~e qndersiqned authority, on tbis d4y personally
·.~    appeared An4y I. we.U.ar, known to- to :be the paraon ~osa 'n&IDa La
0      s\lbsari))e~ to the tareqoing inatrwaent, and .acknowledged to • that
       he executed the same for tbe purposes and consideration therein
       expreaaed, and in tha capacity thnain stated,
0              Givan under my hand and seal this ~day ot )c.ccm'J2c.(
       1994.
N
0

                                                  the State ot fexaa



       STATE     OF TEXAS
       COUN'l'Y OP BARRIS
                                   •
                                   I
            Before me, the undersigned authority, on this day personally
       appeared Katharine ~iedaan Wainer, known to me to be the person
       whose nama ia allbaodbed to the- toreg'oing instrwaent, and
       acknowledged to me that she executed the .... tor the purposes and
       consideration therein expreased, and in the capacity therein
       stated.
               Given under my hand and seal this 13~h day of!     )>ucmbe.r
       1994.


                                                  Noablo n end         fOJ:
                                                  the state of Texas




                                           -12-
   I
  I




        By this- trust egra8111BDt, Andy :t. WeiDer IUid l!tatharj,.na Prle4miUI
 W.J.11er, llasbancl IUicJ wife, lloJ:!I ol llazris COW'!i:l'1 Texas, as
 •trustors,• establish the Daniel steven Wain~ 1tt~ ~t· for the
 benef.i~  of ~air son, Daniel steyun Weine ("Da11ie111 ) , horn
 Kecb 11, 1tt6.       'rrUstora grant, a . .i!Pl and d~ivar to Andy I.
 Weiner IUid Jtatllarina l"riedman weiner, both of Ban:ia camty, Texas,
 as "trustees," the property describ.ed in :A.ttaohlaent .11. Jlttacblllent
 A, which is captioned •xnitial contributton. to the DIUiial steven
 Weiner 19945 TrUst," is incorporated by reference as a part: of tbb
 tr1,1St agre-ent.
       This trust agreement and tbe. t:rust•. aata:blisheci by it are
irrevopabla. No person aball have the right to ~eVOke or amend
this tzwst a;reuant or llJIY of "ita provisions. BoWI!IV8X, property
soceptahle to the trustee llliy be ad4e4 to any trust tr= tillle to
tillle in the tut~e by tzustw:a cr by any other peraon (includinq
additions purauant to the provisions of the last vill of. any
person).
       All re.ferences to •triUitee" shall refer to the person or
parsons then acting aa sucb.
       A.    PJUHARY TRUS'r

A•1,   piatributione. Tbe inccae of the trust may be aoogmulated
amd retainee!, in nola or in part, or the tzustee JDAy 4iatril1Ute to
Daniel, frC'II tillle to time, so liNCh or all ot the trust estate as,
in the t:J:Ustee 1 a discretion, is in Daniel's best inte1'asts.
A-2. 7VPinat.iqp. Daniel PY w1tbdraw any part or all ot the
trust eatate vitbin eo da:rs afte he :¥o0118s BIIJa 21, and aay
thereby teminate the t:rwrt J& to the part vitbm-awn.      11i111:cUe at
tbia witb41:aval rigbt aball be by 011a or 110ra written instrwDanta
delivered. to the trust:8e within the 450-day period. :If or to the
extant that Daaial does not exercise ~is withdrawal rivht, the
trust shall continua until Daniel becoaea ega 30 or 4iea before
that ~9a, at which tiaa the trust eetate shall be distributed!
       (a)    To Daniel.
      (b) If Daniel ill not than liViJ\9, ·to such one or mora
persona, corporJttiona or organbationa (including Daniel's estate),
aa Daniel eppobta by a will which apecifioally xef.n-a to this
poilu: -of appolntlllant. If or to the extent- that Daniel does not
effactivaly exercise this paver of appointment, the txust ilatste
shall lla cUstri,J,uted:
       (1)    '1'c:1 Daniel's daaoendanta, ·

       (2)   If none of Daniel's de&C1lftdants is than t"ivinq, to
truato~a•    deaoand&nta.



                                  EXHIBITB
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                           (3) If none of trustora' duoendanta 1a tben livLnCJ, to
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c:~
                      trustor•' heira.
                      A-3. r•mant pf • • • •          If Daniel I. vill oontaina no contrary
                      4Jzact our the trustee aball pay troa tba UWtt estate tba e~~tira
                      iDCI'. .ant .1.r1 taxea paya)Jla by raascm of Daniel 1 a death· ( inclUd.l.ftv
r\t                   llnY interest or penaltiea thereon) to tbe extant (if any) tbat tbe
                      total of aucl:l taxes is qreater tl:lan would have been illjioaed if no
             ,,....
!''"'~=               port.ion of the t:zust estate ware taltan into account in datansinbq
!~\J
~~:::1        .
              0
                      aucb taxes.
                             B.  CONTINGENT TRUSTS
                                         .                           .
~~~1,1~



              ..
              N
              0
                      B•1.    frUit• "lfbHBhOd, any portion of a trust eatate upon tbe
                       trusts taraina on (ot.beJ: tbu a port:ion witb4l'&vn by Dalliel
                      pursuant to Pu-avzoapb A-21 w'biob would be distrilNtable to a
              0       benetioiaxy wo J.e under ave 30 Gl' to a banafioiazy no 1a under •
                      le;al dieability instead aball ~e distributed to the truatee of a
                      ContlnCJant Tr:uat (unleaa othenrba dir8Citecl by tbe valid aarciae
                      of a powu of apPointment) •          Bacl:l blmef!c:iazy' a portion ao
                      distributed ab&l~ be bald ADd edminiaterad aa tbo initial trust
                      utata of a aapu-ate truet for tba !lenetioiary. Rowevw, if a
                      Contin!Jant ft'Uat b already in axiatanoa for that llanatioiuy, any
                      ad!Utional portlo11 to be c1!atdbutecl to the trullt. . of a Co11ti119eat
                      'l'rUat tor the beaefioiary aball be addM to the trust: eatete ot the
                      exi•tin~ contingent Trait.

                      B-2 • Diat,ribQiiiona.      "l'be inCOIIe of each contin9eat ftllat aay be
                      aCCWDulat.e4 and .J"eteined, in whole or in put, or the truatee uy
                      distribute to tba beneficiary for Wboe tba truet was a.t&bliabad,
                      free tbe to tbe ao aucl:l or all of tba truat estate ••, 1n tba
                      truatea 1 e diac:retlon, ie in the beneficiary's beat 1Dteresta.
                      B-3. Temination, Bach continqent Trust aball teninate when tbe
                      beneficiary ~or Wbom the trust vas e.t&blisbed baa baooaa a!fa lO
                      and ia Wider no 18'181 disability or upon tba !lenldiciary'a aerlier
                      death. Opon t:B%'11ination, the trust estate sbllll be cliatributedl
                             (a)    To the beneficiary.
                            "(b) l t tbe beneficiary is not than living, to auab one or
                      :acre peraons, c:c;p:porations or org'&nbatiou aa the banetiaiu-y
                      appoints by a will wbicl:l specifically ratan to thie pover of
                      appointment.     1:1: n~ne of the baneticiaxy•a deeoan4ute iB tben
                      livin9, this power may .not lie exarciae4 in favor of the
                      benafioiuy tba beneficiary's .State, the beneficiary'• cnclitora
                      or the cradtton ot tha banaticlary'l oatat.e. If or to tbe tUI'tant
                      that the beneficiary c!oaa 110t effectively exercise this power ,of
                      appointme11t, the trult estate aball ba distributed:
                             {1)   To the beneficiary's dascandants.
     (2) I~ none of the beneficiary's desc:ondallts is than livin.,,
to the descendants or the baneticiary's noareet anoeator who waa
one of t1'1.11Jtors' descendiUits and wbo has ducandanta then 11ving',
       (3)     If none of tlleaa peraona ia then liv1n9, to truetora,
cluoendante.
      (4) If none of truet:ora' deaoendanta 1e then livin'l, to
trustor&' hairs.
       C,  DIS'l'RZBOTIOMS
c-1, J;tiatr1butipna 1;Q pr Cgr ttaneflgbriea, During the t112:11 of a
trust,· IUIY diet1'ibut1on to be ude to a beneficiary cr- the trust
may be -de (1) to the blmeflciuy, (ll) i t the buafioiuy ia
under a legal disability or if tbe tlNst:ee det.or:ainu that t:be
beneficiary 1a unable to properly manage hie affaire, to a paraon
furnishing support, uintenance or eduoaUoa for the beneficiary or
vith whDIII the ~Mneficlu:y ia roe1cJ.in9, tor expenditure on the
beneficiary's behalf, or (U1) to a 0\lBt:ocUIUI tor a minor:
baneUciary, as aeleot:ed by tile tzuatee, under the tJn1fol:lll Gifts to
Xinore Act: of any state. Al1:a:lmllt:ive1YI the trustee 1118Y othervias
apply all or a put of tho ct1at:dmition for tbe l:lenaf1oieaoy's
buetit. Bovaver, 110 nob diat:rilRJtion shall be •ada to a trustor,
to any IIJIOil&e of a uu.ator 1 or in a.ny •anne:r that atecbarges a
leqal obligation ( inolu41119 an e~bllgat:ion of INJIPOR) of a trustor:
or lillY spouse oC a truator. 11rtt eli atribution under this paraeJ:raph
shall be a full diacbai:9B of the trustee vitll respect thereto.
c-2,  yat Int.anst• pf l!anpt'fclary, In IIAkintJ 41at1'ibutiona in.
tho "beet int.eroota" ot a benet oiaaoy 1 the b'ulltea may c:anaider t:be
aqe of tho beftaficiaaoy, tba ooet:.a of thB benaClciary's auppo:rt,
maintanuce, educatiOD ud ~ort without rlltJarcl to any other:
r:eaourcea available to the beneficiary tor theaa purpoaaa, the
effect of any distribUtion upon the inca- aDd U"&n8fer tax
liability of the l:nmefioiarY or of the trust, and any otbar tactora
de11111ed relevant 1Jy the 1:r\latoe,
       1),     O'FFIC:I OP TRtJS'rE!
D•l,                         Cv-fr!lstel.
             sucapMr IJ.Irullbp.           '1'b8 following- pravieiona
shall apply to each separate trust established under this trust
eiJZ'eement:
       (e) sucpesaor 'l'rpatae, Should Andy I. Weiner or Katherine
Priedaan weiner cease to act aa trustee, for any reaaon, the ona
raainlntJ aball continuo to act ae trustee. Sbould l:lotb Andy I.
Weiner and ttatherina Frie4mlln Weiner ceaaa to aot: ae trustees, for
any reason, t:ruetora appoint Bayle Weiner orullol aa auccaaaor
trustee. .


                                       -3-
          (1::1) APPpir¢mant ot Sp;c;aa1pr TZ:Mte• by 'l'nu•Sif:· At any tillla
    after ;ualifyinG as U\Jataa, IU\l' b:Witee uy appo t a aucc::ea•or
    tr:ustaa to act l» his place, aitbar ilaDadiately or in the future
    upon any stated oontincJenoy, and aay tbe1'eby suppl-ut the
    provisions ot subparagraph (a),
          (o) Appgint:Jpant. gt: Spcgaaagr :Datea by Banafic!arig, If at
    any time there is no U\Jstee acting and none baa been appointed, a
    majority of the beneficiaries (acting throup the benaficiaxy's
    natural or letal vuucUan 01r la9al zoepra&antat.ive, ih tba aa.e of
    a benefioiery under: a 1119•1 cUAbility) wbo llipt then be e11titlad
    to receive a dist.ributiOII fro. the trust eatato shall appoint a
    successor trustee.
-
0
           (d)     ADppint;mMt pf Co='!'nJ&liat.        Tbe    t.ruatee
    unanimouBly if mcn:a thiUI one) mey appoint one or more co-trustees.
                                                                              (actinv
0
           {o)    W'IJo Nay aa Appoint;.tO..    A sucoaaaor t.ruatee   ~   oo•trustae
    may l:la any individwal, bank or trust o0111pany and may be d011icilec!
    anywhere.
         {f)   Prgqpdpre fer Af'plntaant;, Appointment abaU be ude 'by
    ~ittan   iDsti'UIIent. tile ritb tba trust ncorda.          Any auob
    appointment may be cbantecS or revoked prior to the data it bec011aa
    affective,    Any nob appoint:wlent ·lll&y be limited in uy aanner:
    deemed adviaule by the pct¥11011 aald.nv the appoillt.ent, includilltr
    Cor ~le, reat.rictim.r the PGWR over dietributions as nacasaary
    to avoid the illpollitian of any t.u upon the tnaat, the appointee or
    the appointee • a aatata.
    D-2, Batianatlgn gC zruat;g. A U\Jatee . .y resign .rro. a trust
    without the neo..aity of BnJ court proceeding upon aeettnq tbasa
    conclitionll
          (a) lfSl.t.ig§, At l.eaat 30 up• written .notice (ir not waived)
    shall be qiven to eaCh beneficiary Wbo might then be entitled to
    receive a distribution troll the trust utate. I f a Rerlaficiary is
    under: e leqal diaal:l111t;y, notioa aball be given to (or waived by)
    the benefioiary 1 a natural or legal vuez4ian.
         (b)   Acegpntins.   It ancl to tho extant: required by tbe
    successor trWStea 1 an accounting for the a41111niatration of the
    trust aball ba gl.van to the ncceaaor tru.tea.      Tbe successor
    trustee shall be fully protected in relyinq upon such accauntinv.
    O-J.    Bights   And Liabilities.
           (a) Bgnd Hpt. Bquire4, No bond or other security shall 11e
           required of any truataa.
           (lJ)   Liabilitips. This agraBII!ent aball always be construec1 in

                                               -4-
 favor of the validity or IUIY a~ by or Olllillsion ·at any. trustee. A
 trustee aUl not ba liable tor any aat or aaiieaion except in tbe
 case of grosa negligence, batt faith or fraud. 8peoit1cally, in
 aaeessing tba p~lety or any invaetaant of a trust estate, tbe
 overall pe.rfonance or tlle entire tnet eetate eball be taken tnto
 acoo~mt.


      (c) COJ!Rinsatipn. Bach tr'ueteo ehall ~e entitled to receive
 reasonable compensation tor services actually renderelt to a truat.
      E.    ADMINISTRATION

 1:-1. General Pgyers~t ll'n!Jtaa. To carry out the trust purpoees
 but aubjeat: to any l i tatione stated alaeVbere herein, the truatee
 or eacb trust sball bave tba following powere, whlell aay be
 exercised tree froa court aupenielon, and WbJ.eh &ball exist until
 all or the trust utate has been dlsb'ibuted:
      (a) TrU!!t. ll!tat.a. ':rbe trueteo IIIII)' invest and reinvest all or
any part of the trwlt estate in property of any daecription and say
retain as a part of tbe tl'Wit utata any pzooperty acquired at any
time and 1n any •~r. 8pec1t1cally, and without regard to the
provielons ot any applicable state lawt tbe tn1tee aay retain, or
invest IUI4 reinveet in, property unprOCNativa of iDCGIU, sbarea or
open or clolacl and inveetltent tru.eta or OOIIJNlnlea, vastinv aeeete,
and any other pz"Oparty, regardlese of location and without regard
to any roquiruent of dlve.rsltioation u to ltinli O't' -o'IU\t.
      (bJ  1\!sina§l lld;IIZ'Bil'· fta trustee aey continue oparatian
ot any buainaaa entity, in any bWiinoas ton, wltb all Ol:' any part
or the trust estate, and aay reorganize or liquidate any such
entity at any time.
      (c) 'l'ranefors. I..qana. 'lbe trustee may leaae, sell, transfer,
or enowabarill any 11anner (includinv with purehaao 111oney mortgagee)
all or any part of the trust alft:ate, and uy loan or :borrow 110noy
in any aaDJie.r (inolucling by joint and several obligatiODe) vlth or
without seCNrity. lubjeot to tile provisions of Paragrapb E-3 (a),
tho trustee aay purollase oseete troa ttie estate or a trustor and
aay loan tunda to the eetate ot a truetor at such rate ot .intereet
and with aucb aecurlty as the trusteadete~nee to be in tbe beet
interests of the current b.ncfioiarih of tba trust.
      (d) pealingg With :BI111;14 Partleg. 'l'be trustee ~~«Y deal with
any person or entity rag&rdlesa or any relationship or idantlty at
any trustee to or with that person or entity and may hold or inveat
all or any part ot the trust ..tete in co-on or undi vi dad
interests with that person or entity.
     (e) Agants. l!lployee~. !rha ~tea 11ay employ and COIIpenaate
agents and othar eaployeas 'Wicl may delegate to them any and all
discretions and paver1.
      (f) ra;titipnt. piatribpttMa, The trustee ••Y partition all
or any part of any lntareat, aay pay and receive suab aoneya or
propertiea as may be neceasary to ~aliaa clUterancea, and in so
doing (i) lii&Y 1181Ca any distribution or all or any put of the t.nat
estate in any aanner (including ca.paaing !hares dlffa~ently) and
(11) ...Y evaluate any property, whiob valuation shall be .binclinv on
all beneticiariaa.
     (9)   c:lai•a Gcmt;rgyorllll,    fte tzuatae may maintain and
defend any claill or oontrovaray by or aqainet the truat without tba
joinder or conaant of any ~riciary.
       (h)    A44itignal pqwara. In addition, the trustee shall have
all :t'ighte, pdvile,ea and power11 now or hereafter qrantad to
trustees in 'l'eXaa, includinv those granted under the Taxu 'l'rust
Code.      Any e=-equant ltMJlalation or ~btion axpanclinv or
11Jaiting the rights, priviltMJ•• and powers grantee! a tnstee ehall
apply to all trutta hereunder Ulllaaa 'tba b'uttaa ala~ not to bavt
eucb legislation or regulation apply to a particular ~at by a
written inabnlaant tiled vith t'ba tnlat rac~:~~rdt,      Bowaver, the
provbiona aa4e for the various beaaliciariea under this trutt
aiJI'eamant ve exol11aive. AllY statute that purpcxrta to IAlarva the
class of banefioiariea to Vban distributions ID8Y be aada or the
purpotee for which diatribllti- aay be ID8de eball J\Ot apply to any
trust, All b'uat powers ..y lMt exercised upcm such tU'IIa as the
trustee deems aclvia&bla and aay affect truat propart1e• for any
lenqtb of tille ~"arcllsaa of the "c!ura1:1an of the trust. Ganarally,
and INbject only to the ter~Ds of tbis trust avra-ant, the trustee
shall hold, aanare, control, wsa, inveat, reinvest, ancl cliapoae of
the ti'U81: estate to the sue extent aa i.t the trustee ware the tea
aiaple cwnar thereat.
B-2,     Principal ADd .ln!iSIII.I pat;aplna1;iqns, 'the receipte,
diaburaeaante and reaervee of aaah tra1t _.y be allocated, on a
c ..h or aocraal ba•i• between principal and inoo•e in the
trustee's discretion without regard to the proviaiona of any
statute.    To the extent the t2:Uatee doee not exercise this
discretionary power, the previsions of the TeXas TrUst ~ode shall
control.
!-3.   BDBtriqtiong gn tbe E¥Prei•a of Carta1n egwera,
       (o) paaUnsa with 'l'fU!It Bstata, No povar granted the trustee
shall be oonatrued to enabla any ~son to purahaaa, exchange, or
otherwise deal with or dispose of any trust estate tor lass t.ban ~
adequate consideration in IDOnay or •oney 1 a worth or to authorize
loan• to any person vith~:~~ut adequate interest.        No part of any
trust utate may b1 (i) loaned to a truator or to any apouse of a
trustor or ( 11) BPJilied to tbe ~:~ay.ant: of praai\1118 an ~:~oliciea of
insurance on the life of a trustor or on the life or any apouse of
a truster.
 dis~et
       (kll     Digtrllm1;ians tg or Cpr :zxustao,       Anr
                                                       power to uJte
             anary 4istribut1ona to or far the benef t ot a parson wbo
 is ...vin9 as trustee of a trust (inaludtng distributions to the
 p81'8011 1 s spouse and 4iatrillut1ona 1n diacbaqa of any lqal
 obligation of tbe person) shall be exel'aisa.ble solely t~y the
 trustee 01: trustees other tban that: person, If no other t:ruat:ea 1a
 than serving, aucb pRVel' shell not: be exuaisahle.
B-4 • Boloaq1 1nd polaqationa ot Pgt«ara. Any power 9J:ant:e4 to a
trustee ••Y ba zoeleasec1, in whole 01' in part, t811J1Qn:rily ar
pell:'ll&nently, BICI;Iept aa pravidel! in PAI'agl'apb E-3, any such pover
uy be clel~atad, in Whole 01' 1n part, taporarily or penanontly,
to •I'll' oth..- t:rustoa than aatinv. A :raleaea 01' dal8911tian llhall be
by v:ritteJI inatru:llent filed with the raccmSs of aacb t~t: to vhicb
the release or dale,ation applies.
      P.      J)El"'Dft'::tOfiS AND GBHBRAL PROVX&IONS

P-1. 'f.FUpt Elz..Pta• '"l"n'st estate• 1U&ns all assets, bovavu and
whenever acqu eel (incluclblg ihCOIIe and aoCNIIUlated incolle), Vhicb
:uy belon9 to a trust at anr given time.
r-2, PMAAndi"H· •oaacel\danu• 1Uan& tbe lagitilaat:e ahUcl:ru of
the person or pereans daal.faated and the legitimate 11Pal
desoendante of such cb.ilclreJI, U4 inc:luclea any pU'aon adopted
bet ora becoaing ave 11 and ths a«opt:ad pcrson • s cluceJ!danta.      A
posth11110ua ohild shall 1Ma c:onsiclered as living st the clsatb of his
parent. Whenever a 4ist:r1but1on is to be made to tbe deaoandanta
of any paraan, the property to be distrillutecl eball be 4ivi4ad i.nto
aa 11any equal 8haras aa there are living' chilcl:ren of the person and
deoeaaad obilclran of the puaon wbo 1ert. 4eaoandant:a wbo ua than
living. Bacb living abild llbel1 talca ona ab&l'a ane tba a!ua:n of
each deceased abilcl 8ha11 be dividad aaong bls then livinq
deaaendanb in the sua manner. •trustor&' deacandanta" bloludea
only tboso persons descended from both truators.
P-3.    Ba.lu· Any diat:ribution to ~a :ude to the "heirs" of 11
parson &hall be made to tho individual• Wbo would bave tnheritod
the parson • s psr:sonal property if t!le pN'Son bad died intestate at
the ti11e the diat:rlbution ia toM .ads, clomioileclin Texu and not
mar:riecl, under the leva of 'l'e'Xea in foroo on tbe effective elate af
tbie trust a~euODt, with tbe abares of takin9 detenai.Jied kly those
lava. Bowevar, both truatore and any 8PO\US4I of a truator eball be
deaed to bave c!iacl prior: to tba tble tbat any auob 41stributlon 1B
to be made, A d!atr:ibution to atr:wrtore• baira" shall be 11ada to
the heirs of Andy I, Wainer:.
r-4. Internal Bev•nue COda. "%nt:ornal, Revenue COda• moana the
Internal Revenue COde of 1!18&, aiJ uan4e4, ar cor:raapondinv
proviaions of any subsequent federal tax lava.


                                      -7-
P-5. SliihB£ 'l'NTUI. The use o~ any gander inolucl- 1:ba otber
gander&, and tba uaa of eitbar tbe aingular or the plural includea
t:Jia otber.
F•6. SpMdthrif't PJ'pylaipn. lfo banaticiary &ball bave the powu
to anticipate, onoabe.r, or ta-anafer bia 1ntueat ill any tl'Wit
eatata 1n any .amu. lfo pan of any tzuat eatate &ball· 1Ht liula
tor or charged witb any dabt:a, contracts, l1alJiUtiea or tort:.a of
a banetioiary ol' aUbjoot to aaiaura or other procaaa by any
creditor of a banefioiary. Nothing in tbia paragraph aball be
conatruad to lbdt tba otbezv:l.aa valid exercise of a power of
appointment or rigbt of withdrawal given by thia trust ayraa.ont.
P-7,  :rex11 Lay Aapliea. '.l'ba aitua of the truata aat&bliahed under
tllia trust agre01D811t ia 'l'eXaa.     Rberevar poaaible, tbe lava of
Taxaa ahall apply to the con&trl.lction, adniniatration and validity
of aaob truat.
P•B , Kaxipwp 'l'aEJI gf 'l'ruata, lfo truat shall continua for a period
longer than a1 yaua after the death of the laat to die of truatora
and all of truatar.• daaoondanta who ere l~vinv on the affaotive
date of thia truat aqrea111ant. AllY ~t atill in foroa at t.ba and
of aucll period ahall tenainate, and the truet aatate aJI.all be
distributed to the banatioiary for vboa the trust waa eatalJliahed.
P-9,   i!ZWV''   pt:; Apppintpumt J!Drsilebla by Raneflpierlaa,
exeroia ng a power of appointment vivan to a beneficiary by thia
                                                                       :tn

trust agreaent, the benaticiary . .Y appoint the property aulljeot
to the powa1; outr1CJI:It to the appointee, in trust, or to a CIWitodiiUI
tor tl:le appointea under tbe 'Dnifana Gitta to H~a Aft of uy
atate. xt t:ba banefioJ.a-cy appoi.JI.te to a ou•todian, be . .lf aelecn:
tlle ouato.Sia.n. I t the beneficiary appointe in b:Wit, be aay aalecst
the· truatae or b:Witeea, aay eat&bliab aucb adllinlst.J:ative tenaa
for the trust ae he de81Da appz"opriate, and aay ialpoae lawful
spendthrift restrictions. Ke aay giva the trustee dfsoretionary
powera over the inc011e and principal, an4 may create a truet that
baa several peraieaUila dietrilNtaea. Be IIBY create life intereata
or ctbar l1aita4 interest& in soae appointees vi th :future interests
in favor of othiiZ' appointeu, aay appoint dif:t81"81'1t typea of
interuta uonv the eppoinceea, and aay create new pcwara of
appointment in a uutae or tzouataes or in any appointee. Ra aay
iapose lawful conditions on an appointaant and,, in general, may
appoint to or aaonv the appo1ntaea in any lawful JIIUIII&r.
In detenining wbatber, in what IIIIUU\IIZ' ancl to what extant a
testamentary power of appointment has bean exercised by a
beneficiary, the trustee aay act in reliance upon a court order
admitting an inetruaant to probata as the bana:ticiary'a last will
or an order findinv that the banetioiary died intestate. Onlaas
within six montba after the beneticiary•a 4eatb the truatoe baa
actual notice of tha existence of procaedi1198 to probata a will of
the beneficiary, the trustee shall aaauae that tbe beneficiary died
                                   -8-
"~";:r
co
!;:J
1::~
L~~


0
'it
en
,.,
..lllll~.
r 'l

                   intestate.       Tbe foregoing provisions are intended to expedite the
                   p~ompt      and ett ioiiUit adlliniatretion of the Uullt and to protaot the
~'
                   t:.rustee troa any aot.t.on tllken or diatrUnltion JUde ill accorcSBJica
r:r.~l;ll
                   witb tbeee provbiona. lfotblng 1n tllia paragrapb ahall liait or
~:~
                   qualify any power of appointllant: given by thia truat avre•ent o~
                   any right wllich an appointee or talcer 1n default ot appointaent aay
t:;\j       ~"!
                   have against ·~ person receiving a distribution troa the trustee
ill.        t:     i~respective of the place of p~obata o~ of tba ti•• of diaoovary of
! "'I~      c      a vill exercising. the pover ~ any other aotion talcan in the
C4~J               banefioiar.y'a estate.
            ~
~:~:~       ,.            G.     ACCI!P'l'MCB BY TROS'l'EB
~~~~:1
            ...,
            1\     By eign1J19 tbia trust aq~eiRient,  the trustee (i) accepts tbeae
                   truata and all of the ri9hta, povara and dutieo attached to the
            "'"'   office of twataa aa provided herein, ( UJ agrees to aa.rva as

            "      truat.. of the Daniel staveD Wainer 1116 ft'~aat and of any
                   contingent 'l'ruata wtaicb aay be aatabliabecl under t:!IJ.a trulft
                   afTBeaent, (iii) ecJcnovladgaa receipt of tba property daacribad in
                   Attachaent ~. IUid (iv) eqreaa to bold and adainiatar e&cb trust
                   estate in aocordanco viti\ the ter.a of thia truat agrae•ant.
                          Tbis t:ruat BtJreeaent is executed aftaotiva as of tba          :roth   day
                   Of   Ma~oh, 111V6,


                                                         Alidy r. wain•~, T'r\iator and
                                                         Tr\Uitee


                                                         ia£barlie Pdedaan Wainer,
                                                         !r\lator and Trustee




                                                                   /




                                                             -9-
          ·--------- -                                     - -- - - .


    ~
,_'!l      A'l'TACIDCEN'l'
          TO               ~~ ST~~tJIER 1f9 6 'l'ROST
               '1'HB r:wri...,
                                      CON'l'RIBD'l'IOJIS
!o
    ~



                            $1.00




 ,0 c~


    ...
    c"'
                            iildyl. lunar, TrUStor and
                            TrUstee


                            iat&arlne ri'li&n lleliier •
                            !rU&tor and ~tee       .




II
I




I
i
j
I                            -10-




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