                                                                                          ACCEPTED
                                                                                     04-15-00087-CV
                                                                          FOURTH COURT OF APPEALS
                                                                               SAN ANTONIO, TEXAS
                                                                                3/23/2015 7:20:09 PM
                                                                                       KEITH HOTTLE
                                                                                              CLERK

                              NO. 04-15-00087-CV

                                                             FILED IN
                                                      4th COURT OF APPEALS
                     IN THE COURT OF APPEALS FOR THE   SAN ANTONIO, TEXAS
                 FOURTH DISTRICT OF TEXAS AT SAN ANTONIO
                                                      03/23/2015 7:20:09 PM
                                                          KEITH E. HOTTLE
                                                               Clerk
                        ESTATE OF SHIRLEY L. BENSON


                         THOMAS MILTON BENSON, JR.,
                              AS TRUSTEE OF THE
                   SHIRLEY L. BENSON TESTAMENTARY TRUST,
                                                 Appellant

                                        v.

                                 Renee Benson,
                                                       Appellee


                      On Appeal from Probate Court No. 2
                             Bexar County, Texas
                       Cause No. 155,572 and 155,572-A


                    UNOPPOSED MOTION TO ABATE DUE TO
                       REMOVAL TO FEDERAL COURT


      The Appellant— Thomas Milton Benson, Jr., in his capacity as Trustee of the

Shirley L. Benson Testamentary Trust—removed this case to federal court last

Wednesday, March 18, 2015. See Ex. 1.

      Upon receiving notice of removal, the state courts “shall proceed no further

unless and until the case is remanded.” 28 U.S.C. §1446(d). Therefore, this Court
should abate the appeal, including the briefing schedule, until it is determined

whether the case will remain in federal court. Lattin v. Barrett, 153 S.W.3d 700, 701

(Tex. App.—Waco 2005, no pet.) (“Because of the removal, we will abate this

proceeding, subject to reinstatement when and if the bankruptcy court executes a

remand order and the clerk of that court mails a certified copy to this Court.”) (citing

Quaestor Invs., Inc. v. State of Chiapas, Mex., 997 S.W.2d 226, 229 (Tex.1999) (per

curiam)).

      As of now, the appellant’s brief has been filed, and the appellee’s brief is due

March 26, 2015. This Court denied Thomas Benson’s motion to further expedite

this accelerated appeal but stated that no extensions of briefing deadlines would be

granted absent extraordinary circumstances.        For the moment, because of the

removal, Renee Benson has no choice but to switch her attention away from this

brief to the federal-court proceedings. If and when the case is remanded to state

court, and the briefing schedule resumes, Renee Benson respectfully requests that

this Court reset the deadline for her appellee’s brief to give her a reasonable amount

of time to complete and file the brief. The parties agree to 14 days from the day the

Court is notified of remand, but Renee Benson reserves the right to request a slightly

longer period depending on the circumstances at the time remand occurs.




                                           2
                                     Respectfully submitted,

                                        /s/ Harriet O’Neill
Bennett L. Stahl                       Harriet O’Neill
State Bar No. 19006500                 State Bar No. 00000027
blstahl@csg-law.com                    honeill@harrietoneilllaw.com
CURL STAHL GEIS                        LAW OFFICE OF
A PROFESSIONAL                         HARRIET O’NEILL, P.C.
CORPORATION                            919 Congress Avenue, Suite 1400
One Riverwalk Place                    Austin, Texas 78701
700 North St. Mary’s Street, Ste. 1800 Telephone: (512) 944-2222
San Antonio, Texas 78205               Telecopier: (512) 476-6441
Telephone: (210) 226-2182
Telecopier: (210) 226-1691             Douglas W. Alexander
                                       State Bar No. 00992350
Emily Harrison Liljenwall              dalexander@adjtlaw.com
State Bar No. 12352250                 Amy Warr
eliljenwall@scs-law.com                State Bar No. 00795708
SCHOENBAUM, CURPHY                     awarr@adjtlaw.com
& SCANLAN, P.C.                        ALEXANDER DUBOSE
112 E. Pecan, Suite 3000               JEFFERSON & TOWNSEND LLP
San Antonio, Texas 78205               515 Congress Avenue, Suite 2350
Telephone: (210) 224-4491              Austin, Texas 78701-3562
Telecopier: (210) 224-7983             Telephone: (512) 482-9300
                                       Facsimile: (512) 482-9303

                                     Attorneys for Appellee Renee Benson




                                      3
                          CERTIFICATE OF CONFERENCE

      On March 23, 2015, I conferred with Russell Post, attorney for Appellant, and

he stated that his client does not oppose the motion to abate. Further, if remand

occurs, his client does not oppose a new deadline for appellee’s brief of 14 days after

this Court receives notice of the remand.



                                                /s/ Harriet O’Neill
                                                Harriet O’Neill




                                            4
                             CERTIFICATE OF SERVICE

      On March 23, 2015, I electronically filed this document with the Clerk of the

Court using the eFile.TXCourts.gov electronic filing system which will send

notification of such filing to the following:

 David J. Beck
 State Bar No. 0000070
 dbeck@beckredden.com
 Russell S. Post
 State Bar No. 0079758
 rpost@beckredden.com
 Troy Ford
 State Bar No. 24032181
 tford@beckredden.com
 Owen J. McGovern
 State Bar No. 24092804
 omcgovern@beckredden.com
 BECK REDDEN LLP
 1221 McKinney Street, Suite 4500
 Houston, Texas 77010-2010
 Telephone: (713) 951-3700
 Telecopier: (713) 951-3720

Attorneys for Trustee Thomas Milton Benson, Jr.
As Trusted of the Shirley L. Benson Testamentary Trust




                                                 /s/ Harriet O’Neill
                                                Harriet O’Neill




                                           5
EXHIBIT 1
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                                IN THE UNITED STATES DISTRICT COURT
                                 FOR THE WESTERN DISTRICT OF TEXAS
                                        SAN ANTONIO DIVISION

RBNEB BENSON                                              $
                                                          $
v                                                         $        C.A. No. 15-202
                                                          $
THOMAS MILTON BENSON, JR.                                 $
As Trustee of the                                         $
SHIRLEY L. BENSON                                         $
TESTAMENTARY TRUST                                        $


                                            NOTICE OF REMOVAL


TO THE HONORABLE UNITED STATES DISTRICT JUDGE:

           Pursuant       to 28 U.S.C.   $$ 1441, et seq., Defendant   / Defendant-Trustee   Thomas Milton

Benson, Jr. ("Mr. Benson") hereby rerroves to this Court the state court action Renee Benson            v.


Thomas Milton Benson, Jr., as Trustee of the Shirley L. Benson Testamentary Trust, Cause Number

155,572-A.r As grounds for removal, Mr. Benson states as follows:

                                          NATURE OF THE ACTION

           l.           After being appointed as Temporary, Lirnited Co-Receivers in a pending state court

action to remove Mr. Benson as the Trustee of the Shirley L, Benson Testamentary Trust ("Trust"),

Co-Receivers Phil Hardberger and Art Bayern filed a Plea in Intervention to join in that action and

assert new        claims. This filing hijacked the underlying action against the Trustee, using it as a

vehicle to pursue an entirely new case that bears no resemblance whatsoever to the original trustee

removal action and could not have been pursued in its own right.


t
 M.. B.nton only seeks removal of Cause Number I15,572-A, Renee Benson v. Thomas Milton
Benson, -/r., which contains (1) Petitioner's original petition to remove Mr. Benson as Trustee
and (2) the Co-Receivers' Plea in Intervention. He does not seek to remove Estate of Shirley L.
Benson, Cause Number 155,572, which is the original action adrninistering the Estate of
decedent Shirley L. Benson. The adrninistration of that Estate has been closed for over thirty
years.


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            2.           Unlike the original petition between Mr. Benson-in his official capacity          as


Trustee-and his daughter-Petitioner Renee Benson-the Co-Receivers' Plea in Intervention                  sues

Mr. Benson in his personal capacity. And whereas the original action affirrnatively stated that it

sought no monetary relief from Mr. Benson individually, the Co-Receivers' seek a declaration that

would      (l)   invalidate his $550 million reacquisition of assets from several trusts that are completely

unrelated to the underlying trustee removal proceeding, and (2) divest him of one share of stock in

Bensco,       Inc.-a      company with more than 1.6 rnillion outstanding shares.

            3.           Faced with this radically altered action against his personal assets, Defendant /

Defendant-Trustee Mr. Benson now seeks to exercise his right to rernove this case to federal court.

                                           TIMELINESS OF REMOVAL

            4.           Service of the Co-Receivers' Plea in Intervention was effected on or about March2,

2015. See Tab            F.   This Notice of Removal has been filed within thirty (30) days of service of the

last-served defendant (Mr. Benson in his individual capacity)2 and with the consent of all earlier-

served defendants (Mr. Benson as Trustee) and is therefore              tirnely. See28 U.S.C. $ 1446(bX2XC)

("If   defendants are served at different times, and a later-served defendant files a notice of removal,

any earlier-served defendant may consent to the removal even though that earlier-served defendant

did not previously initiate or consent to removal.").

            5.           Removal is also tirnely for Mr. Benson in his capacity as Trustee under the Fifth

Circuit's long-recognized "revival exception." This judicially-created exception to 28 U,S.C.



' Mr. Benson was not made a defendant in his personal capacity in tlie original removal
proceeding. See Hofe, v. Melo,502 U.S. 21,27 (1991) ("the distinction between official-
capacity suits and personal-capacity suits is more than a mere pleading device."); Werner v.
Colwell,909 S.W.2d 866, 870 (Tex. 1995) ("Nowhere in her operative pleading does Colwell
allege that I.M. Werner was liable in her capacity as trustee. Unless waived by a general
appearance a court cannot confer acapacity on the party that has not been pleaded.").




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$ 1446's 3O-day requirement provides that"a lapsed right to remove an initially removable case

within thirty days is restored when the complaint is amended so substantially as to alter the

character of the action and constitute essentially a new lawsuit." Johnson v. Heublein Lnc.,227

F.3d,236,241 (5thCir.2000). The Plea in Intervention has aligned the parties "in a completely

different manner" such that the allegations now "bear no resemblance whatsoever" to the

original action. See id. Whereas the original petition was an action between 4 beneficiary and      a


Trustee, the Plea in Intervention seeks to transform the case into a declaratory action between the

Trust itself (through the Co-Receivers) and Mr. Benson in his individual capacity. Such            an

action "bears no resemblance whatsoever" to the allegations in the original petition-which do

not mention, rnuch less contest, the ownership of Bensco shares or the validity of the 2015 asset

exchange. Further, Mr. Benson certainly has not consented to litigating those issues in state

coutl.3 Because the Plea in Intervention "starts a virtually new, rnore complex, and substantial

case against the [defendant] upon which no signif,rcant proceedings have been held, [and] the

removal        will not result in delay, waste, or undue tactical advantage to a party," Johnson,227

F.3d at 242,the revival exception allows Mr. Benson to remove the entire case at this tirne.

            6.           Finally, removal is timely under 28 U.S.C. $ 1446(bX3), which allows removal

within 30 days of the filing of an "other paper" giving notice of a federal question, to wit, the

Co-Receivers' March 2,2015 Plea in Intervention.




' "[A] willingness on the part of the defendant to remain in a state court to litigate a particular
claim should not be interpreted as a willingness on his part to remain in a state court to
adjudicate a completely different claim." 14C CHARLES ALAN WRIGHT, ARTHUR R.
MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE $ 3732, ar
321 (1ee8).


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                                       REMOVAL UNDER 28 U.S.C.               Q   1441ft)

            7.           Removal is proper under 28 U.S.C. $ 1441(b). Section I44l(b)(2) permits

removal if the Court has original jurisdiction under 28 U.S.C. $ 1332(a) and none of the "parties

in interest properly joined and served as defendants is a citizen of the State in which such action

is brought."

            8.           All   served Defendants (Mr. Benson in his individual capacity and Mr. Benson in

his capacity as Trustee) are citizens of Louisiana.

            9.           All   served Defendants (Mr. Benson in his individual capacity and Mr. Benson in

his capacity as Trustee) have consented to removal.

                                   CO-RECEIVERS' PLEA IN INTERVENTION

         I.              The Co-Receivers' Plea in Intervention Meets the Requirements for Diversity
                         Jurisdiction Under 28 U.S.C. $ 1332.

            10.          This Court has jurisdiction of the state court lawsuit under 28 U.S.C. $ 1332 because

the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is

between citizens of different states.

                         A.       The Amount in Controversy Requirement is Satisfied.

            11.          The amount in controversy is well in excess of $75,000. Removal is "proper if it

is 'facially         apparent' frorn the complaint that the claim                  or claims asserted exceed     the

jurisdictional amount." Salovitz               v. Uber Technologies, Inc.,            A-I4-CV-823-LY, 2014 WL

5318031, at *5 (W.D. Tex. Oct. 16, 2014) (citing Allen v. R                      & H Oil & Gas Co., 63 F .3d 1326,

1335 (5th       Cir. 1995)). In      cases where the   plaintiff   seeks non-monetary relief, the rule in the   Fifth

Circuit is that "[t]he amount in controversy . . . is the value of the right to be protected or the

extent of tlre injury to be prevented." St. Paul Reins. Co. v. Greenberg, 134 F.3d 1250, 1252-53




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(5th Cir. 1998) (internal quotation marks omitted). The Court rnay apply "common sense" when

rnaking an amount in controversy determination. See Allen,63 F.3d at 1336.

           12. Mr. Benson recently furnished 5449,857,572 in promissory                           notes and real

property to trusts he created for Petitioner and her children in exchange for the assets held by

those trusts. The Co-Receivers' Plea                  in Intervention      seeks   a declaration invalidating   this

exchange. Tab F at7-9.

           13.          The Co-Receivers' further challenge the ownership of Bensco, Inc., seeking                 a

declaration that          (l)   the Shirley Benson Trust is a      50o/o   co-owner of Bensco and (2) that the

remaining 50o/o of Bensco is owned by the 2009 Trusts set up for Petitioner and her children,

rather than Mr. Benson himself. Bensco owns five car dealerships across Louisiana and Texas.

It is uncontested that the value of these ownership interests exceeds $75,000.

           14.          It is therefore facially apparent from the state court pleadings that the amount          in

controversy exceeds $75,000.

                        B.       There     is   Complete Diversity Between the Co-Receivers and Mr.
                                 Benson.

           15.          Cornplete diversity exists because this       is a suit between Texas Plaintiffs        (Co-

Receivers and Petitioner) and Louisiana Defendants                  (Mr. Benson, both as an individual and        as


Trustee). In aligning the parties for purposes of diversity, courts must "look beyond the pleadings,

and arrange the parties according to their sides in the dispute to ensure that the parties have a

collision of interests over the principal purpose of the suit and the primary and controlling rnatter in

dispute." Chesapeake Louisiana, L.P. v. Buffco Prod., Inc., 564 Fed. App'x 751, 755 (5th Cir.

2014), reh'g denied (June 5, 2014) (quoting City of Indianapolis v. Chase                    Nat'l Bank of City of

N.Y., 314 U.S. 63, 69 (1941)) (internal quotation marks omitted).




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           16.          Plaintiffs-in-Intervention Phil Hardberger and   Art Bayern-the        Temporary,

Limited Co-Receivers-upon information and belief are residents of San Antonio, Bexar County,

Texas.

           17.          Robert Rosenthal is Trustee of the Renee Benson 2009 Irrevocable Trust, the Rita

Benson LeBlanc 2009 Irrevocable Trust, and the Ryan LeBlanc 2009Irrevocable Trust ("2009

Trusts"). Rosenthal may be served with citation at his place of business at Rosenthal Pauerstein

Sandoloski Agather LLP, 755 East Mulberry St., Suite 200, San Antonio, Texas 78212.

Although identified as a party-in-interest in the suit, Rosenthal's interests are aligned with the

Plaintiffs-in-Intervention, making him a Plaintiff for the purposes of diversity analysis. The

"generally accepted test for alignment places the parties with the same 'ultimate interests' in the

litigation on the same side." Grffin v. Lee,621 F.3d 380, 388 (5th Cir. 2010). The Co-

Receivers' Plea in Intervention seeks to declare that Mr. Benson's $550 million reacquisition of

assets from the 2009 Trusts was invalid for failure to provide "equivalent value" and that the 2009

Trusts-not Mr. Benson-own 50% of Bensco, Inc. This is the exact sarne position Mr.

Rosenthal has taken on the issue.a That the Co-Receivers seek the same result that Mr. Rosenthal is

currently pursuing in other litigation demonstrates that they share the same "ultimate interest" and

should be placed on the same side for purposes of diversity jurisdiction.




a
 ,See Complaint for Declaratory Judgment and Injunction, Thomas Milton Benson, Jr. v. Robert
Rosenthal, Civil Action No. 2:15-cv-00782 (E,.D. La. frled March ll,2015), ECF No. 1 at 15,



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           18.          Thomas Milton Benson, Jr. ("Mr. Benson") is an individual who is domiciled5 at

16 Audubon Place, New Orleans, Louisiana 70118. Mr. Benson is a citizen of the State of

Louisiana, spends the vast majority                 of his time in Louisiana, and      manages    his   substantial

business activities-including the New Orleans Saints, the New Orleans Pelicans, and the

Trust-from his Louisiana office,               located at 5800 Airline Drive, Metairie, Louisiana 70003. Mr,

Benson owns the controlling interest in Bensco,               Inc. His ownership interest is the subject matter

of the Co-Receivers' Plea in Intervention.

           19.          It is therefore   apparent from the face of the pleadings that cornplete diversity exists

between Plaintiffs and the Defendant on the Co-Receivers' Plea in Intervention. Because the Plea

in Intervention satisfres both the amount in controversy and diversity requirements of 28 U.S.C.

$ 1332, removal is appropriate.

       II.              The Co-Receivers' Plea in Intervention Meets the Requirements for Federal
                        Question Jurisdiction Under 28 U.S.C. $ 1331.

           20.          This Court has jurisdiction of the state court lawsuit under 28 U.S.C. $ 1331 because

the matter is a         "civil action[] arising under the Constitution, laws, or treaties of the United States."

           21.          The well-pleaded complaint rule requires that for a federal court to have "arising

under jurisdiction, the plaintiff s federal law claims must appear on the face of the complaint."

McKnight v. Dresser, Inc., 676 F.3d 426,430 (5th Cir. 2012). A federal question exists if "the

plaintiff s right to relief necessarily depends on resolution of a substantial question of federal law."

Singh v. Duane Moruis LLP,538 F.3d 334, 337-38 (5th Cir. 2008).



s In her related Petition for Interdiction-filed in the Civil District Court for the Parish of
Orleans in Louisiana-Petitioner Renee Benson admits that Mr. Benson is domiciled in
Louisiana. See In re Interdiction of Thomqs Milton Benson,.,Ir., Cause No. 15-655, af I (La.
Dist. Ct. filed Jan. 22,2015). The domicile of a natural person under Louisiana law is "the place
of his habitual residence." La. Civil Code art. 38. For Mr. Benson, that place is l6 Audubon
Place, New Orleans, Louisiana.


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            22.          The Co-Receivers and Mr. Rosenthal challenge Mr. Benson's ownership of Bensco,

Inc. on the grounds that his exchange of assets was insufficient, However, the 2009 and 2012

Trusts are grantor trusts, which are exclusively a creation of federal               law. In accordance with       the

Internal Revenue Code provisions governing grantor trusts, the grantor of a grantor trust is treated                as


the owner of the assets held by the trust, and the grantor is responsible for all taxes attributable to

assets held by the         trust. 26 U.S.C. $$ 671-679.

            23.          The Internal Revenue Code's grantor trust provisions interact with                      other

provisions of the Internal Revenue Code. Specifically, among other things, under Sections 2036

and 2038 of the Internal Revenue Code, the grantor's exercise of the                 rightto exchange       assets in a

grantor trust may, under ceftain circumstances, result in all of the trust's assets being taxable in

the grantor's estate at their current fair market value, disregarding the date of the transfer.

            24.          The 2009 and2012 Trusts were expressly intended to be subject to Internal Revenue

Code $ 675(4), which gives Mr. Benson grantor status and allows him to "reacquire the trust corpus

by substituting other property of an equivalent value." 26 U.S.C. $ 675(4).

            25.          Mr. Benson's Notice of Exchange          states that   it was effective   as of January     l,

2015. The Notice contained a valuation adjustment clause that allowed Mr. Rosenthal to contest

the adequacy-rather than the             validity-of the exchange. However, the Co-Receivers                  and Mr.

Rosenthal seek a declaration that because they deem the substituted property inadequate, no

exchange has occurred and, therefore, Bensco is owned by the 2009 Trusts instead of Mr.

Benson. This contention is contrary to Internal Revenue Code                         $ 675, revenue rulings, and

judicial precedents relating thereto, which provide that an exchange of                     assets under $ 675 is

effective on the date specified by the grantor, not the date the exchange is accepted by the

trustee.




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           26.          Because the Court cannot grant the relief requested by the Co-Receivers and Mr.

Rosenthal without resolving the question of when an asset reacquisition exchange becomes effective

under 26 U.S.C. $ 675(4), the Plaintifß' right to relief necessarily depends on the resolution of a

substantial question of federal        law. It is therefore facially apparent from the state courtpleadings

that a federal question exists in this case, justifying removal of this action to federal court.

                PETITTONN,R'S ORTGTNAL PE,                    ON TO REMOVE THE TRUSTEE

        L               Petitioner's Original Petition to Remove the Trustee Meets the Requirements
                        for Diversity Jurisdiction Under 28 U.S.C. $ 1332.
           27   .       This Court has jurisdiction of the state court lawsuit under 28 U.S.C, $ 1332 because

the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is

between citizens of different states.

                        A.     The Amount in Controversy Requirement is Satisfied.

           28. For the purposes of                establishing removal jurisdiction,     a   defendant may

demonstrate that the amount in controversy exceeds the $75,000 statutory minimum in either                 of

two ways: (i) by demonstrating that it is apparent from the face of the petition that the plaintiffs

claims are likely to exceed $75,000, or (2) "by setting foth the facls in controversy-preferably

in the removal petition, but sometimes by affidavit-that support a finding of the requisite

amount." Allen,63 F.3d at 1335; accord, Manguno v. Prudential Prop. and Casualty Ins. Co.,

276 F.3d 720,723 (5th Cir. 2002) (quoting Simon v. Wal-Mart Stores, Inc., 193 F.3d 848, 850

(5th Cir. 1999)); Grant v. Chevron Phillips Chem. Co., 309 F.3d 864, 868 (5th Cir. 2002);

Luckett v. Delta Airlines, Inc., 171F.3d295,298 (5th Cir. 1999).

           29.          Petitioner's original petition seeks to remove Mr. Benson as Trustee and place

herself in control of the Trust and its substantial assets. "The amount in controversy, in an action




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for declaratory or injunctive relief, is the value of the right to be protected or the extent of the

injury to be prevented." Greenberg, 134 F.3d at 1252-53.

               30.          The Trust contains-among other assets-approximxely $4.7 million in cash, a

substantial minority interest in Bensco, Inc., and a 97o/o ownership interest in Lone Star Capital

Bank, which has total deposits of $203 million. It is therefore both "facially apparent" from the

complaint and readily apparent upon analysis of the facts in controversy that the claim or claims

assefted exceed the jurisdictional amount. See Salovitz,2014                 WL 5318031, at *5.

                            B.      There is Complete Diversity Between Petitioner and the Trustee.

               31.          Petitioner Renee Benson is an individual having residence at 503 Bluffwood

Drive, San Antonio, Bexar County, Texas 78216. She is a curent and remainder benefîciary of

the Trust and the Petitioner in the underlying action to remove Mr. Benson as Trustee.

               32.          Thomas Milton Benson, Jr. ("Mr. Benson"), in his capacity as a Trustee, is the

Trustee of the Shirley L. Benson Testamentary Trust. As stated, from the time the underlying

action was frled to date, he has been dorniciled at 16 Audubon Place, New Orleans, Louisiana

70118. Until the Co-Receivers were appointed, Mr. Benson managed the Trust from his

Louisiana offrce, located at 5800 Airline Drive, Metairie, Louisiana 70003.

               33.          It facially   apparent from the state court pleadings that complete diversity exists

between Petitioner and Defendant-Trustee. Because both the amount                               in controversy      and

diversity requirements of 28 U.S.C. $ i332 have been satisfied, removal is appropriate.

                                          JURISDICTION UNDER 28 U.S.C.           S 1367

               34.          This Court has diversity and federal question jurisdiction overthis case. 28 U.S.C.

$ 1367.           "A claim forms part of the same          case or controversy   if the 'clairn [is]   so related to the

original clairns that [it] derive[s] from a common nucleus of operative fact."' Venable v. Louìsiana

Workers' Comp. Corp.,740 F.3d 937,944 (5th Cir. 2013). Although the claims themselves are


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drastically different, they derive from a common nucleus of operative facts in that the Co-Receivers

derive their power frorn the temporary injunction issued pending resolution of Petitioner's action to

remove the trustee.6 Without the underlying trustee removal action, there would be no Plea in

Intervention. Thus, it is clear from the face of the pleadings that the Plaintiffs' state law claims all

arise from the same nucleus of operative facts. Supplernental jurisdiction is appropriate.

                                                    CONCLUSION

            35.            Mr. Benson   l'eserves the right   to submit additional evidence in support of this

Notice of Removal should Plaintiffs move to remand.

            36.            By virlue of this Notice of Removal, Mr. Benson does not waive the right               to

asserl any claims, defenses               or other motions permitted under the Federal Rules of Civil
Procedure.

            37.            Probate Court Number     2 for Bexar County, State of Texas is located in            San


Antonio, Texas, and therefore is within the United States District Court for the Western District

of Texas, San Antonio Division, pursuant to 28 U.S.C. $ 124(dX4),

            38.            Therefore, venue   is proper in the Western District of Texas, San Antonio
Division, in accordance with 28 U.S.C. $ 1441(a), because it is the "district and division

ernbracing the place where such action is pending."

            39.            No previous application has been made by Mr. Benson for the relief              requested

herein.




6
 The state couft's Second Amended Order Granting Injunction, Suspending Trustee & Appointing
Lirnited Temporary Co-Receivers with Restrictions is currently being appealed to the Court of
Appeals for the Fourth District of Texas at San Antonio. ,See Tabs U-W, Estate of Shirley L.
Benson / Thomas Milton Benson, Jr., as Trustee of the Shirley L. Benson Testamentary Trust v.
Renee Benson, No. 04-15-00087 (Tex. App.-San Antonio brief filed March 6,2015).


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            40.          Pursuant to 28 U.S.C. $ 1446(a), a copy of the state court record as it existed as   of

March 17, 2015, is attached as Tabs A-DD. No other process, pleadings, or orders have been

served upon Mr. Benson or appear in the record.

            41.          Pursuant   to 28 U.S.C. $ 1446(d), Mr. Benson will provide written notice of     the

filing of this Notice of Removal to all              adverse    parties. In addition, a copy of this removal

petition is being filed with the clerk of the court in which the state action was f,rled.

            42.          For the reasons stated above, Mr. Benson respectfully requests that this Court take

jurisdiction of this action to its conclusion and frnal judgrnent to the exclusion of any further

proceedings in the state action.



March 18,2015                                                 Respectfully submitted,

                                                              BECK I nnODnn r,LP

                                                        By:        /s/ David J. Beck
                                                                   David J. Beck
                                                                   State Bar No. 00000070
                                                                   l22l McKinney Street, Suite 4500
                                                                   Houston, Texas 7 7 010-2010
                                                                   Telephone: (713) 951-3700
                                                                   Telecopier: (713)951-3720
                                                                   ATTORNEY-IN-CHARGE FOR
                                                                   THOMAS MILTON BENSON, JR., in
                                                                   his individual capacity, and
                                                                   TRUSTEE THOMAS MILTON
                                                                   BENSON, JR.
                                                                   as Trustee of the
                                                                   SHIRLEY L. BENSON
                                                                   TESTAMBNTARY TRUST
OF COUNSEL:
Troy Ford
State Bar No. 240321 81
l22l McKinney Street, Suite 4500
Houston, Texas 77010-2010
Telephone: (713)951-3700
Telecopier: (713)951-3720


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                     Case 5:15-cv-00202 Document 1- Filed 03/1_B/l_5 Page                1"3   of   1-B




                                         CERTIFICATE OF SERVICE

                I
         hereby certify that a true and correct copy of foregoing document was served in
compliance with the Texas Rules of Civil Procedure on March 18, 2015, by serving the
following via electronic mail:

Bennett L. Stahl                                        Co-Receiver Phil Hardberger,
CURL STAHL GEIS                                         c/o C. David Kinder, Mark J. Barrera, and
A PROFESSIONAL CORPORATION                              Ellen B. Mirchell
One Riverwalk Place                                     Cox Smith Matthews Incorporated
700 North St. Mary's Street, Suite 1800                 112 East Pecan Street, Suite 1800
San Antonio, Texas 78205                                San Antonio, Texas 78205
Telephone : (21 0) 226 -21 82                           Telephone: (210) 554-5500
Telecopier: (210)226 | 69            1                  Telecopier: (210) 226-8395
tr   I   stah I (?cs e- I aw. co m                      pharclber r¡er@)cox smith. com
                                                        d ki n derlà,coxs m ith. com
Emily Harrison Liljenwall                               n"r barlera(¿.Ìcox s rn i th. conr

SCHOENBAUM, CURPHY & SCANLAN, P.C.                      qmitchell@)coxsmitlr.oom
Il2E.          Pecan, Suite 3000
San Antonio, Texas 78205
Telephone: (210) 224-4491
Telecopier: (210) 224 -7 9 83
eli I i enwall rã.scs-law.com

Harriet O'Neill                                         Co-Receiver Arthur H. Bayern,
LAW OFFICE OF HARRIET O'NEILL,                   P.C    c/o Joyce W. Moore
919 Congress Avenue, Suite 1400                         LANGLEY & BANACK,INC.
Austin, Texas 78701                                     745 East Mulberry Avenue, Suite 900
Teleplrone: (512) 944-2222                              San Antonio, Texas 78212
Telecopier: (512) 476-6441                              Telephone: (210) 736-6600
hone il llOharrietoneill law.com                        Telecopier: (210) 735-6889
                                                        a   ba   yern (â)l an gl ey b anack.   co   m
Douglas Alexander                                       jwmoore(âD,lan gleyban acl<.con-r
ALEXANDER, DUBOSE, JEFFERSON &
TOWNSEND LLP
515 Congress Ave., Suite 2350
Austin, Texas 78701
Telephone: (512) 944-2222
Telecopier: (512) 47 6-6441
d al exan er(rlad tl aw, conr
                c1        i




ATTORNEYS FOR PETITIONER
RENEE BENSON




558242-v7 I 1884-00001
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                  Case 5:L5-cv-00202 Document   l-   Filed 03/1-8/1-5 Page   1-4   of   1-B




Kevin P. Kennedy
1920 Nacogdoches Road, Suite 100
San   Antonio, Texas 78209
Telephone: (210)824-0771
Telecopier: (210) -824-2731

ATTORNEY FOR ROBERT A. ROSENTHAL
in his capacity as TRUSTEE OF THE RENEE
BENSON 2OO9 IRREVOCABLE TRUST, THE
RITA                  BENSON LEBLANC        2OO9
IRREVOCABLE TRUST, THE RYAN
LEBLANC 2OO9 IRREVOCABLE TRUST,
THE RENEE BENSON 2012 IRREVOCABLE
TRUST, THE RITA BENCON LEBLANC 2012
IRREVOCABLE TRUST, THE RYAN
LEBLANC 2OI2 IRREVOCABLB TRUST,
THE TOM BENSON 2OI2 GRANTOR
RETINED ANNUITY TRUST, AND THB TOM
BENSON 2OI4 GRANTOR RETAINED
ANNUITY TRUST

Robeft A. ("Bobby") Rosenthal
brosenthal@rpsalaw. com
ROSENTHAL PAUERSTEIN SANDOLOSKI
AGATHER LLP
755 East Mulberry, Suite 200
San Antonio, Texas 78212
Telephone: (210)244-8860
Telecopier: (210) 244-8960




                                                /s/ David J. Beck
                                                DAVID J. BECK




558242-v7/1884-0000   I                         14
                  Case 5:1-5-cv-00202 Document               l-   Filed 03/1-8/1-5 Page 15 of l-B




                                IN THE UNITED STATES DISTRICT COURT
                                 FOR THE WESTERN DISTRICT OF TEXAS
                                        SAN ANTONIO DIVISION

RENEE BENSON                                                  $
                                                              $
V                                                             $        C.A. No.
                                                              $
THOMAS MILTON BENSON, JR.                                     $
As Trustee of the                                             $
SHIRLEY L. BENSON                                             $
TESTAMENTARY TRUST                                            $


                                     INDEX OF'MATTERS BEING F'ILED

TRIAL COUT RECORD

L          Trial Court Documents          (as filed   with the San Antonio Court of Appeals)

           A.           State court docket sheet;

           B.           Clerk's Record, Trial Court Case No. 755,572-A in Probate Court No. 2 of Bexar
                        County, Texas;

           C.           Supplemental Clerk's Record, Trial Court Case No. 155,572-A in Probate Court No.
                        2 of Bexar County, Texas;

           D.           Second Supplemental Clerk's Record, Trial Court Case No. 155,572-A in Probate
                        CourtNo. 2 of Bexar County, Texas;

           E.           Reporter's Record   -   Transcript of February 4,2075 Temporary Injunction Hearing;

           F.           Reporter's Record   -   Transcript of February 5,2015 Temporary Injunction Hearing;

           G.           Repofter's Record   -   Transcript of February 9,2075 Temporary Injunction Hearing;

           H.           Reporter's Record   -   Exhibit List frorn Temporary Injunction Hearing;

           I.           Repofter's Record   -   Exhibits from Ternporary Injunction Hearing;

il.        Trial Court Documents (filed after appeal)
           J.           Letter from Co-Receivers to Judge Rickhoff regarding transfer of Trust assets;

           K.           Co-Receivers' Plea in lntervention;

           L.           Letter frorn Judge Rickhoff responding to Co-Receivers' Plea in Intervention;

s58242-v7 11884-00001
                   Case 5:1-5-cv-00202 Document                 l-   Filed 03118115 Page 16 of   1_B




            M.           Motion for Authority to Pay Note;

            N.           Motion for Authority to Pay Accountant;

            O.           Response of Thomas Milton Benson, Jr., as Trustee, to Motion for Authority to Pay
                         Note;

            P.           Proposed Order Granting Motion for Authority to Pay Note;

            a.           Certif,rcate of Service ofNotice of Removal;

            R.           Notice of Filing Notice of Removal.

            S.           Index of matters being filed;

            T.           List of allcounsel of record;

APPELLATE COURT RECORD

I.          Motions, Orders, and Briefs

            U.           Emergency Motion to Expedite Appeal

            V.           Order Denying Appellant's Motion to Expedite Appeal;

            W.           Appellant's Brief;

II.         Additional Correspondence

            X.           Correspondence from Court       -   Appeal docketed;

            Y.           Appellant'sDocketingStatement;

            Z.           Clerk's Record filed;

            AA.          L. Crain letter to Court;

            BB.          Repofter's Record frled;

            CC.          Supplemental Clerk's Record filed;

            DD.          Second Supplemental Clerk's Record filed.




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                      Case 5'1-5-cv-00202 Document   1        Filed 03/1-8/1-5 Page   1-7   of   1-B




                               IN THE UNITED STATES DISTRICT COURT
                                FOR THE WESTERN DISTRICT OF TEXAS
                                       SAN ANTONIO DIVISION

RENEE BENSON                                           $
                                                          $
V                                                         $        C.A. No.
                                                          $
THOMAS MILTON BENSON, JR.                                 $
As Trustee of the                                         s
SHIRLEY L. BENSON                                         $
TESTAMENTARY TRUST                                        s

                                    LIST OF ALL COUNSEL OF RECORI)


Bennett L. Stahl                                               David J, Beck
CURL STAHL GEIS                                                BECK I nnOOnN     lln
A PROFESSIONAL CORPORATION                                     1221McKinney Street, Suite 4500
One Riverwalk Place                                            Houston, Texas 77 010-2010
700 North St. Mary's Street, Suite 1800                        Telephone: (713)951-3700
San Antonio, Texas 78205                                       Telecopier: (713)951-3720
Telephone : (21 0) 226 -21 82
Telecopier: (210)226 1 69 I                                    ATTORNEY-IN-CHARGE FOR
blstahI@csg-law.coni                                           THOMAS MILTON BENSON, JR., in
                                                               his individual capacity, and
                                                               TRUSTEE THOMAS MILTON
                                                               BENSON, JR.
                                                               as Trustee of the
                                                               SHIRLEY L. BENSON
                                                               TESTAMENTARY TRUST

Ernily Harrison Lilj enwall
SCHOBNBAUM, CURPHY & SCANLAN, P.C.
ll2E.         Pecan, Suite 3000
San     Antonio, Texas 78205
Telephone: (210) 224 -449 1
Telecopier: (210) 224-7 983
el i lì enwa ll@scs-law.com


Harriet O'Neill
LAW OFFICE OF HARRIET O'NEILL,                  P.C.
919 Congress Avenue, Suite 1400
Austin, Texas 7870I
Telephone: (512) 944-2222
Telecopier: (512) 476-6441
hone i ll (r?h arri etone i ll law.con'ì



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                  Case 5:15-cv-00202 Document   l-   Filed 03/l-B/1-5 Page l-B of   1-B




Douglas Alexander
ALEXANDER, DUBOSE, JEFFERSON &
TOWNSEND LLP
515 Congress Ave,, Suite 2350
Austin, Texas 78701
Telephone: (512) 944-2222
Telecopier: (512) 47 6-6441
dalexander@adjtl aw. com

ATTORNEYS FOR PETITIONER
RENEE BENSON
Co-Receiver Phil Hardberger,                          Kevin P. Kennedy
clo C. David Kinder, Mark J. Barrera, and Ellen B      1920 Nacogdoches Road, Suite 100
Mitchell                                              SanAntonio, Texas 78209
Cox Smith Matthews Incorporated                       Telephone: (210) 824-0771
112 East Pecan Street, Suite 1800                     Telecopier: (210)-824-2731
San Antonio, Texas 78205
Telephone: (210) 554-5500                             ATTORNEY FOR ROBERT                   A.
Telecopier: (210)226-8395                             ROSENTHAL in his capacity             as
pharclber serØcoxsm ith. coln                         TRUSTEE OF THE RENEE BENSON
dlcinder@,coxsmiilr.corn                              2OO9 IRREVOCABLE TRUST, THE
m barrera(:lùcox s rn ith. com                        RITA BENSON LEBLANC                 2OO9
em itchell @,coxsm ith.corn                           IRREVOCABLE TRUST, THE RYAN
                                                      LEBLANC 2OO9 IRREVOCABLE
Co-Receiver Arthur H. Bayern,                         TRUST, THE RENEE BENSON 2012
c/o Joyce W. Moore                                    IRREVOCABLE TRUST, THE RITA
LANGLEY & BANACK,INC.                                  BENCON LEBLANC                     2OI2
745 East Mulberry Avenue, Suite 900                    IRREVOCABLE TRUST, THE RYAN
San Antonio, Texas 78212                               LEBLANC 2OI2 IRREVOCABLE
Telephone: (210) 7 36-6600                             TRUST, THE TOM BENSON 2OI2
Telecopier: (210) 735-6889                             GRANTOR RETINED ANNUITY
aba yenr (i?l   an   gl   e),banack. com               TRUST, AND THB TOM BENSON
iwrnoore@)lan             evbanack.com                 2OI4 GRANTOR RETAINBD
                                                       ANNUITY TRUST

                                                       Robert A. ("Bobby") Rosenthal
                                                       bro senthal@rpsalaw. com
                                                       ROSENTHAL PAUERSTEIN
                                                       SANDOLOSKI AGATHER LLP
                                                       755 East Mulberry, Suite 200
                                                       San Antonio, Texas 78212
                                                       Telephone: (210)244-8860
                                                       Telecopier: (210) 244-8960




558242-v7 /1884-00001                           18
