      management of his finances. Albert created GWB Trust into which any interest he may have

      held in the Estate could be funneled. He then created Renhaw, Inc., and Pentex  FILED IN
                                                                                     Royalty Trust,
                                                                              6th COURT OF APPEALS
                                                                                    TEXARKANA, TEXAS
      into which any interest he may have held in GWB Trust could be funneled.1/12/2015
                                                                                When a federal tax
                                                                                        4:29:33 PM
      lien was filed against Pentex Royalty Trust in Fall 2013, Albert then createdDEBBIE
                                                                                    GBU   AUTREY
                                                                                        Trust
                                                                                      Clerk
                                                                                              into

      which any interest he held in Pentex. Royalty Trust could be funneled. Albert's plan was that by

      the time the I.R.S. caught up with his own specialized version of the trickle-down theory, Albert

      would be long gone to Central America.

              14.      Scott is aware that Albert deliberately engages in fraud and that he illegally

      drafted the CSL. By seeking protection for Albert in tenns of the deposition while still

      maintaining that Albert is not his. client, Scott knowingly furthers Albert's    e~orts   to elude

      justice, in violation of Texas Rules of Evidence Rule No. 503(d)(1).

              15.      Albert's defense that he is too ill to travel is blatant subterfuge, designed to

      protect Albert from exposure to this suit, including the deposition. The statement provided by

      Albert's alleged physician, Leoncl Montenegro, did not declare that Dr. Montenegro examined

      Albert, only that Albert's medical file was in the office, and that the statement was presented at

      the request of an interested party. See Exhibit D. Albert has a history of faking health issues to

      avoid legal action. For instance, in or around November 30, 2009, Albert was said to have faked

      a heart attack in order to avoid prosecution for not cleaning the wreckage of his $500,000 yacht,

      The Great Escape, which ran agrpund off the Coast of Belize and fouled its pristine barrier reef.

      News reports from Channel 5 of Belize quoted Newspaper Editor Roy McNett, who stated that

      he spoke with Albert following the accident According to Roy, Albert "did not have a heart

      attack," and at that time was buying land in Rio Dulce. See Exhibit E.
      OsmcllONS TO MOTION TO QuASH OR FOR PROTECI1VE ORDER
      RELATING TO SUBPOENAS AND DEPOSmON NO'llCES AND
      MonON TO COMPEL OEPOSmONS OF ALBERT BARCROFT AND                             CAUSBNO. CV-14-41665
      ANGELL1CARRASCOON0CToBER13,2014                                                                 -6-

      PENTEX FOUNDATION Y. GIBBS, E1' AI..



406
              16.      The Subpoena to Albert stated that the deposition would take place in the office

      of Pentex's Counsel, on October 13, 2014. The location is obviously convenient to Pentex's

      Counsel, and the date was offered as available by Pentex's Counsel. There can be no place and

      time more convenient for the deposition.3

              17.      Pentex's resistance to the Subpoena is because Albert and Pentex have a great

      deal of infonnation that each wistt.es to bide, as it promises to affect the outcome of this suit

      adversely. Albert is a crucial elem~nt in the events addressed in this suit Albert is the admitted

      Legal Representative for Pentex. Pentex must therefore produce Albert for deposition at the

      appointed place and time.

                                     ID;     DEPosmON OF ANGELLI CARRASCO.

              18.      On September 2, 2014, Ken and Candy issued Angelli a State of Texas Subpoena

      Duces Tecum for Oral Deposition, to be conducted on October 13, 2014, at 10 o'clock a.m., at

      the office ofPentex's Counsel Scott Smith, 120 South Crockett Street, Sherman, Texas 75091-

      0354. See Exhibit F.

              19.      Based on infonnation provided to· Ken and Candy during discovery, Angelli

      Carrasco is President, Director, and Chainnan of Pentex- three (3) apex-level positions of

      authority in Pentex. Per the Texas Rules of Civil Procedure requiring service to counsel when

      counsel exists, the Subpoena to Angelli was rightfully served to Scott. Service to any other

      party would not be effective, as Scott represents Pentex.



      3
       Ken and Candy believe that Albert, whose residence is in Guatemala, is currently traveling in Texas. Although
      Scott was able to produce a signed unverified Affidavit ftom Albert on September 3, 2014, Scott claimed that
      obtaining an Affidavit fiom Angelli Cattasco, ftom Panama, was impossible due to logistics.
      OBJECJ'IONS TO ManoN TO QuASH OR FOR PROTECTIVE ORDER
      RELATING TO SUBPOENAS AND DEPOSmON NoTICES AND ·
      MonON TO COMPEL DEPOSmONS OF ALBERT BARCROFT AND                                      CAUSE No. CV-14-41665
      ANGELLI CARRASCO ON 0croBER 13,2014                                                                        -7-
      PENTEX FOUNDATION r. GIBBS, El' AI..



407
              20.     AngeJIPs deposition is necessary to achieve justice in this matter. Angelli was

      noticed that her deposition will address questions concerning her personal knowledge of the

      following: (1) the incorporation ofPentex Foundation; (2) daily activities ofPentex Foundation;

      (3) all monies received from the Estate and GWB Trust; (4) the board minutes on or about

      August 4, 2014, in which she agreed to file suit against Kenneth Gibbs and Candace Gibbs in

      Fannin County; and (5) Albert'$ and Danny Unger's legal authority to act on Pentex

      Foundation's behalf. Each of the issues goes to allegations made by Albert concerning the

      functions of Pentex as relates to the CSL, the FSA, and GWB Trust. Each of these issues is

      highly pertinent to the Cause, likely to lead to information which is highly pertinent to the

      Cause, and therefore discoverable.

              21.     As a President and Director and Chairman of a multi-national corporation, which

      is currently involved in a lawsuit concerning more than $1 million in assets, Angelli's excuse

      that she does not own a passport for travel to the United States is only that - an excuse. The

      excuse that Pentex does not control Angelli is yet another excuse - as President and Director

      and Chairman of Pentex., Angelli answers to Pentex for her actions involving the organization.

      Pentex can indeed require her to attend a deposition on its behalf.

              22.     The Subpoena to Angelli stated that the deposition would take place in the office

      of Pentex's Counsel, on October 13, 2014. The location is obviously convenient to Pentex's

      Counsel, and the date was offered as available by Pentex's Counsel. There can be no place and

      time more convenient for the deposition.

              23.     Pentex's resistance to Angelli's Subpoena suggests that, as is the case with

      Albert's deposition, Pentex has a great deal to hide. Angelli holds the top-ranked positions in
      OBJECTIONS TO MonON TO QuASH OR FOR PROTECTIVE ORDER
      RELATING TO SUBPOENAS AND DEPOSmON NOTicEs AND
      MonON TO COMPEL DEPOSmONS OF ALBERT BARCROFT AND                            CAUSENo. CV-1441665
      ANGELLI CARRASCO ON OCToBER 13,2014                                                            -8-
      PENTEX FOUNDATION 1'. GIBBS, ET AL


408
      Pentex, positions whose responsibilities must necessarily be executed with awareness of the

      ongoing affairs of the organization. It is reasonable to think that Angelli, as

      President/Director/Chainnan, would know of the ongoing lawsuit (particularly since she

      allegedly signed Minutes of Board Meetings approving Scott's retention), just as it is reasonable

      to assume that Scott represents her as President/Director/Chairman because he represents

      Pentex. Ken and Candy are entitled to depose ADgelli. As Plaintiff in this matter, Pentex is

      responsible for producing Angelli for the deposition.

                                            IV. PRAYERFORRELIEF.

              24.      Ken and Candy therefore respectfully pray that this Court:

              2S.     Compel Albert Barcroft to appear for deposition at the office of Pentex

      Foundations's Counsel, Scott Smith, on October 13,2014, at 10 a.m.; and present upon demand

      all relevant documents requested by Defendants; and

              26.      Compel Angelli Carrasco to appear for deposition at the office of Pentex's

      Counse~    Scott Smith, on October 13, 2014, at 10 a.m.; and present upon demand all relevant

      documents requested by Defendants;

              27.      Compel document production as requested from Danny Unger at the deposition

      on October 13, 2014 and hearing on September 30, 2014;

              28.      Compel document production as requested from Joshua Unger at the deposition

      on October 13,2014 and hearing on September 30, 2014; or,

              29.      In the alternative, stay the proceedings until such time that Pentex Foundation

      produces Albert Barcroft and Angelli Carrasco for deposition in the matter, and until such time

      that all requested discovery is produced by Danny lJnger and Joshua Unger; and
      081EC1lONS TO MOTION TO QUASH OR FOR PROTECTIVE ORDER
      RELATING 10 SUBPOENAS AND DEPOSmON NOTICES AND
      MOTION TO COMPI!L DEI'OSMONS OF ALBERT BARCROFT AND                           CAUSENO. CV-14-41665
      ANGEW CARRASCO ON OCToBER 13,2014                                                              -9-
      PENTEX FOUNDATION V. GIBBS, Ef.41..


409
               30.      Deny Plaintiffs Motion for Sanctions and award Candy and Ken just attorney

      fees to defend Plaintiff's frivolous (and very poorly written) Motion to Quash.

                                                   Respectfully submitted,

                                                   LAW OFFICES OF CHRISTY LEE, P.C.




                                                   Chri~
                                                   Texas State Bar No. 24052302
                                                   777 Main Street, Ste. 600
                                                   Fort Worth, Texas 76102
                                                   (817) 504-6075
                                                   (800) 437-7901 -Fax
                                                   clee@christyleelaw.com

                                                   AITORNEY FOR CANDACE WALTON AND
                                                   KENNETH GIBBS




      OBJECTIONS TO MO'IlON TO QUASH OR FOR PROTECTIVE ORDER
      RELATING TO SUBPOENAS AND DEI'O$!TION NO"IlCES AND
      MOTION TO COMPEL DEPOS!TIONS OF ALI3ERT BARCROFT AND                        CAUSENO. CV-14-41665
      ANGELLI CARRASCO ON OCTOBER 13,2014                                                         -10-
      PENT£:< FOUNDATION V. GIBBS, ETA I•.



410
                                            CERTIFICATE OF SERVICE

      1 certify that a true and correct copy of the above Defendants' Objections to Motion to Quash
      for Protective Order Relating to Subpoenas and Deposition Notices and Motion to Compel
      Depositions of Albert Barcroft and Angelli Carrasco on October 13, 2014, and was delivered,
      pursuant to Texas Rules of Civil Procedure, to the following parties on this 25th date of
      September, 2014:



      Howard Kirk Gibbs                              Mail
      4360 Western Center Blvd., No. 205             Email: hkgibbs@gmail.com
      Fort Worth, TX 76157

      Pentex Foundation, and                         Email: smithlaw@airmail.net
      GBU Friends and Associates Trust               Fax:
      c/o Scott Smith, Attorney of Record
      120 South Crockett Street
      Sherman, TX 75091-0354




                                                     Chr~·



      OBJECTIONS TO MOTION TO QUASH OR FOR PROTECTIVE ORDER
      RELATING TO SUBPOENAS AND DEPOSITION NOTICES AND
      MOTION TO COMPEL DEPOSITIONS OF ALBERT BARCROFT AND                          CAUSE No. CV -14-41665
      ANGEI.LI CARRASCO ON OCTOBER 13,2014                                                           -11-

      PENTllX FOUND,ff/ON V. G/8/JS, £TAL



411
                                                 CAUSE No. CV-14-41665

      PENTEX F'OUI'-!Di\ TION                              )              IN TilE DISTRICT COURT
               PLAII'-!TIFL                                )
                                                           )
                                                                          336"~' JUDICIAL DISTRICT
                                                                               11
      vs.                                                  )
                                                           )
      KENNETH VERN GIBBS; AND                              )
      CANDACE GIBBS WALTON; AND                            )
      HOWARD KIRK GIBBS,                                   )
           DEFENDANTS.                                     J              FAN:--:IN COUNTY, TEXAS


            THE STATE OF TEXAS S!JIWOENA DUCES TECUM FOR ORAL DEPOStTION

      TO:      Albert Barcroft, legal repreSentative and alter ego of Pentex Foundation c/o Scott Smith.

      120 South Crockett Street. Shcrma11. Texas 75091-0354.

               YOU ARE COMMJ\NDUJ by the State of'Tex<~S to appear at 120 South Crockett Street.

      Sherman. Texas 75091-0354. on the 13th day of October, 2014. at 10 o'clock a.m .. to attend and

      give testimony at a deposition. A}bert Barcroft is be deposed to his personal knowledge of the

      following: (l) division and distribution of attorney Ices from the Estate of Bert Gibbs in 2008.

      (2) drafting of the GWB Family and Friends Trusi, (3) the Contrm;t fbr Sale of Contract for Sale

      of Land, Mineral Rights and Royalties and all other Assets or Monies Received from the Estate

      of Bert Hughes Gibbs, Kathryn G. Gibbs, and/or the Mary L. Houseworth Trust(s) or "The

      Kathryn llouscwm1h Gibbs Irrl!vncable Trust." {the "CSL") (4) signing of the Family Settlement

      Agreement. and (5) Pentcx Royalty Tmst federal tax liens.

               The deposition will be stunographically recorded by !Vlcrit Court Reporters, 307 West 7th

      Street Ste. 1350, Fort Worth. Texas 76102, ( 817) 336-3042, or such other qualitied court

      reporter as may be designated. Such deposition when taken will be used in evidence upon the trial

      of this cause. The deposition will conti nul;! from day to day until completed. All counsel and

      parties arc invited to attend and cross-examine as they may deem proper.
      THE STATE OF TEXAS SUBPOENA                                                   CAUSE No. CV-14-41665
      l'b\'TEX FOUNDATION I'S. Gmf1S, F:T AI..                                                         -I-

412
                                              ENFORCEMENT ()F SUBPOENA

               Pursuant to Texas Rules of Civil Procedure No. 176.8, failure by any person without

      adequate excuse to obey a subpoena t1pon that person may be deemed a contempt of the court

      from which the subpoena is issued or a district court in the county in which the subpoena is

      served. and may be punished by fine or conlincment. or both.




      YOU ARE FURTHER COMMANDED to produce and pcm1it inspection and copying of

      documents or tangible things in your custody or control as follows (if not othcrvvisc noted, the

      date is since the inception of Pcntex foundation. or November L 2008, whichever is earlier):

           I. A true and correct copy of all documents showing that you had legal authority to act as

               legal representative of Pentcx Foundation.

          2. A true and correct copy oF all documents showing that you had legal authority to act as

               legal representative of Pcntcx Royalty Trust.

          3. A true and correct copy of all documents showing that you had legal authority to act as

               legal representative or Rc1~shaw, Inc.

          4. A true and correct copy              or all emails and documents in which you corresponded with the
               Estate of Bert Gibbs conceming the distribution of attorney fees associated with Kenneth

               Gibbs, Candace Walton. and Howard Kirk Gibbs.

          5. A true ami correct copy of any payment (including cancelled checks. money orders.

               money transfers. etc.) from you, PenlC'x Royally Trusl Pentex Foundation, Renshaw,

               Inc .. GBU Friends and Associates Trust, or any other entity in which you have an

               interest, paid to Scott Smith.

          6. A true and correct copy of any payment (including cancelled cbcch, money orders.

      Tl II: STATE OF TEXAS SliBI'OEN,'\
      P£N'I'IiX FOUNDA770N 1<\'. 01/38.~~ ETAL.


413
             money transfers. etc.) from you, Pentcx Royalty Trust, Pcntex Foundation, Renshaw,

             Inc., CiBU Friends and Associates Trust, or any other entity in which you l1ave an

             inicresL paid to John Skotnik.

         7. A true and correct copy of any payment (including cancelled checks. money orders,

             money transfers. etc.) you, Pcntex Royalty Trust, Pcntcx Foundation, Renshaw. lm: ..

             GBLJ Friends and Associates Trust or any other entity in which you have an interest.

             paid to Beverly Miller.

         8. A true and correct copy of any payment (including cancelled checks, money orders.

             money transfers, etc.) you or Pentex Foundation received from GWB Family and Friends

             Trust.

         9. A true and correct copy of all your United States federal incQmc tax returns thm1 2008 to

             present filed by you.

          10. A true and correct copy of all legal rulings in any lawsuit in which you have been a party

             since January 1. 2005.

          11. A true and correct copies of Pcntex Royalty Trust docum\!nl.

          12. A true and correct copies of United States federal income tax retums from 2008 to

             present filed by Pcntcx Royalty Tmst

          13. A true and correct copy t1f your personal phone records from January I, 2013, to the

             present.

          14. 1\. true and correct copy of your resume.

          15. A true and correct copy     of your professional certificates and quali!ications to be a legal
             rcrrcsentative of an international company.

          16. A true and correct copy of all communications (including such things as emails,

      THE STATE OF TEXAS SUBPOENA                                                     CAUSE NO. CV -14-41665
      PENrn· FnwmAT/ON rs Gmus. r;TAJ..


414                                                                                        Page     3
                documents. tape recordings. memorandums, etc.) with Scott Smith in association with

                GWB Family and Friends Trust, Pcntex foundation, Pentcx Royalty Trust, GBU Friends

                and Associates Trust, and           l~e   Estate of Bert Gibbs, since January. 1, 2013, in regard to

                monies     r~ccived     or distributed to anyone or any entity. GBU Friends and Associates

                Trust's existence, employer identification number, communications with the Internal

                Revenue Service, the CSL,Family Settlement Agreement, any distributions                  or attorney
                fees from the Estate of Bert Gibbs. and the administration of the Estate of Bert Gibbs.

           17. A true and correct copy of all communication (including such things as emails,

                documents. tape        recordings~    memorandums, etc.) with Beverly Miller, and her attorneys

                Shan·on Cox and Earl Hargrave, concerning GWB Family and Friends Trust, Pentex

                Foundation. GBU Friends and Associates Trust, and the Estate of Bert Gibbs, since

                January. 1 2013, in regard to monies received or distrihuted to anyone or any entity. GBU

                Friends and Associates Tn.!sl existence, employer identillcation number, communications

                with the Intemal Revenue Service. the CSL. Family Settlement Agreement. any

                distributions of attorney fees from the Estate of Bert Gibbs, and the administration of the

                Estate   or Bert Gibbs.
           18. A true and correct copy of all communications (including such things as emails,

                documents, tape recordings, memorandums, etc.) with John Skotnik conccming G\VB

                Family and Friends Trust.           P~ntcx    Foundation. GBU Friends and Associates Trust, and

                the Estate of Bert Gibbs since .lanumy, 1 2008, in regard to monies received or

                distributed to anyone or any entity, GBU Friends and Associates Trust's existence.

                employer identification nllmber, communications with the Internal Revenue Service. the

                CSL, Family Settlement Agreement. any distributions of attorney fees from the Estate of

      TilE STATE OF TEXAS SUBPOENA                                                             CAliSE No. CV-14-41665
      PF'flrri::X FOUNOArtON I'S. GI/JB!.~ ETA/..
                                                                                                                   -4-
                                                                                                                    •    •   A  , '   ~h



                                                                                                               Exh1b1t. ? ; · d1i:Jj.£; .


                                                                                                   Page_~ ~{~~;~J~~
415
                Bert Gibbs, and the administJ·ation or the Estate ofBert Gibbs.

           19. A true and correct copy of nil communications (including such things as emails.

                documents. tape recordings 1 memorandums, clc.) with Howard Kirk Gibbs concerning

                GWB Family und Friends Trust, Pcntex Foundation. und GBU Friends and Associates

                Trust since January, 1 1008, in regards to monies received or distributed Lo anyone or any

                entity, GBU Friends and Associates Trust's existence, employer identification number,

                communications with the Internal Revenue Service. the CSL. Family Settlement

                Agreement, any distributilJns of attomey fees from the Estate of Bett Gibbs. and the

                administration of the Estato of Bert Gibbs.

          20. A true and correct copy of all communications (including such things as emails.

                documents. tape rccordin,gs. memorandums. etc.) with Earl Hargrave concerning the

                Estate of Bert Gibbs, including the administration of the estate and distribution of

                attomey fees since June I, 2014. in regard to monies received or distributed to anyone or

                any entity. GBU Friends and Associates Trust existence. employer identification number.

                communication with thG: Internal Revenue Service, the CSL, Family Settlement

                Agreement, any distributions of attorney fees 1rom the Estate of Bert Gibbs, and the

                administration of the Esta1c of Bert Gibbs.

           21. A true and correct copy of all communications (including such things as cmails,

                documents. tape recordings. memorandums. etc.) with Rickey Brantley or his office

                concerning the Estate of Bert Gibbs, including the adminislration of the estate and

                distribution ofattomcy fees since January. l 2008.

           22. True and correct copies of all drafts or the GWB Family and Friends Trust.

           23. True and conect copies of all drafts of GBU Friends and Associates Trust.
      TilE STATE OF TEXAS SUIWOENA                                                   CAUSE No. CV ·14-41665
      I'F:".VTf:.'X FOUNl>ATION   rs. CJ/IJJJS,   ETA/..                                                    ·5-
                                                                                                    Exhibit
416                                                                                                 c-.:)
                                                                                       Page_........,_,__
          24. 1\ true and correct copy of any articles 1 books. blogs, or any communications in which

              you advised any person on how to avoid paying United States fhlcral income taxes or

              avoiding participation in lawsuits.

          25. Tme and corn:ct copies of all drafts of the CSL since .January I. 2005.

          16. A true   ~111d   cQrrcct copy of proof of all legal documents in your pos5cssion which attest

              to your legal representative of any entity that have been provided to GWB Family and

              Friends Trust and to the EstOll.te of Bert Hughes Gibbs.

      The subpoena is prepared and issued for Defendants Kenneth Gibbs and Candace Walton, by

      CounseL in accordance with Rule 176 of the Texas Rules of Civil Pmcedure

               Issued on September, 2, 20 14.

                                                                LAW OFFICES OF CHRlSTY LEE, P.C.



                                                                   ---   M
                                                                Christy L. Lee
                                                                                  ·---·-------·-·

                                                                Texas State Bar No. 24052302
                                                                777 Main Street, Suite 600
                                                                Fmt Worth, TX 76102
                                                                Office: (IS 17) 504-607 5
                                                                Fax: (800) 437-7901
                                                                clee@christyleclaw .com

                                                                ATTORNEY FOR KENNETH GIBBS
                                                                AND CANDACE WALTON

                                                CERTIFICATI~   OF SERVICE

      I hereby certify that a true and correct copy of the above and l'orcgoing document was delivered.
      pursuant to Texas Rules of Civil Procedure and Rule II Agreement. to the rollowing partie~ on
      this 2nd day ofSeplcmber, 2014:

      Pcntex Foundation ami                                            Via fax and email
      CiBU Friends and Associates Trust
      c/o Scott Smith. Attomcy of Record

      TilE STATE OF TEXAS St.!IWOENI\
      f'J;xn;x fOI:NfJATION IX GIBUS, ETtll..


417
                                                                                           Page
  I20 South Crockett Street
  Sherman, TX 75091-0354

  HO\vard Kirk Gibbs                              Via mail and email
  9929 Crawford Farm Drive
  Fort Worth. TX 76244




                                           -~---·-·--····-
                                           Christy L. Lee




  THE STATE Of TEXAS SUBPOENA
  PENTt:X FOUNDATION VS. 0/IJJJS, !ITAL.



418
                                            NO. CV-14-41665
      PENTEX FOUNDATION,                             §               IN THE DISTRICT COURT OF
                             Plaintiff               §
                                                     §
      v.                                             §
                                                     §               FANNIN COUNTY, TEXAS
      KENNETH VERN GIBBS, CANDACE                    §
      GIBBS WALTON and HOWARl>                       §
      KIRK GIBBS,    Defendants                      §               3361h JUDICIAL DISTRICT

                            PENTE~ FOUNDATION'S RESPONSE
                           TO DISCQVERY FROM KENNETH GffiBS
      TO:    Kenneth Vern Gibbs, by and through his attorney of record.

           COMES NOW, Pentex Foundation, files this its response to the First
      Request for Discovery received on August 11,2014, and would show as follows:

                                         GENERAL OBJECTION

            Pentex Foundation objects to the Instructions and Definitions to the extent
      they enlarge the responsibilities of a litigant under the Texas Rules of Civil
      Procedure. Pentex Foundation specifically objects to the definition of"You" and
      "Your" to the extent it combines the existence ofPentex Foundation with "Albert
      Barcroft, as Legal Representative." They are not one in the same. Pentex
      Foundation answers and responds only in its own right. Pentex Foundation will
      respond subject to the Rules.

             Pentex Foundation o~ects to producing any documents in the offices of
      counsel. To the extent there are documents to be produced, they will be produced
      at the offices of counsel for the responding party.

                            RESPONSE TO DISCOVERY REQUESTS
             As a predicate to responding, pursuant to the laws of Panama, a foundation
      is required to keep records <)nly for the current year. Submitted herewith are
      documents marked as Plaintiff/Intervenor 00001-000257.

      DISCOVERY REQUESTS REQUEST FOR PRODUCTION NO. 1: Produce all
      documents dating back to September 1, 2008, that you have concerning
      distribution of attorney fees from the Estate.

             RESPONSE: Pentex Foundation has no documentation in its possession
             responsive to this request, except those marked Plaintiff/Intervenor 000135-

      PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS                             Page 1




419
                                                                                  Page
              175.

      REQUEST FOR PRODUCTION NO. 2: Produce all documents dating back to
      January 1, 2013, that you have concerning the GBU Trust.

             RESPONSE: Objection. This request is overly broad and fails to direct
             Plaintiff to any class or type of documents. See, Loftin v. Martin, 766
             S.W.2d 145 (1989).

      REQUEST FOR PRODUCTION NO. 3: Produce all documents proving your
      existence and validity, including names of the Board of Directors and Legal
      Representatives who have served since the inception of the entity; and letters,
      emails, bank records, correspondence, and accountings related to Albert's
      involvement in your formation.

             RESPONSE: Objection. This request is overly broad and outside the scope
             of discovery to the ext~nt it requests "letters, emails, bank records,
             correspondence, and aqcountings related to Albert's involvement in your
             formation." Subject to: this objection, please see the documents attached
             hereto as Plaintiff/Inte:tpleader 0000 1-0003 3.

      REQUEST FOR PRODUCTlON NO.4: Produce a copy of every federal tax return
      that you and Pentex Trust has filed with the Internal Revenue Service since 2008.

             RESPONSE: Objection, the request is made merely to harass and no other
             purpose, as tax returns are generally not discoverable, see Hall v. Lawlis,
             907 SW2d 493 (Tex. 1995); Chamberlain v. Cherry, 818 SW2d 201
             (Amarillo 1991 ).

      REQUEST FOR PRODUCTION NO. 5: Produce a copy of the Pentex Trust.

             RESPONSE: Objection. This request seeks information which is outside the
             scope of discovery.

      REQUEST FOR PRODUCTION NO. 6: Produce all communication dating back
      to September 1, 2008. including letters, tape recordings, or emails, that you have
      had with any representative of ConocoPhillips concerning you yourself, Albert,
      GWB Trust, Pentex Trust, or GBU Trust.

             RESPONSE: Pentex Foundation has no documentation in its possession
             responsive to this request.

      REQUEST FOR PRODUCTION NO. 7: Produce any communication dating back
      to January 1, 2013, including letters, tape recordings, or emails, that you have had

      PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS                      Page2




420                                                                        Page
      with Danny Unger concerning 1GBU Trust.

             RESPONSE: Pentex Foundation objects to any such communications
             initiated after the anticipation of litigation and/or protected pursuant to the
             "joint defense doctrine" recognized in TEX. R. EVID. 503(b)(1) and such
             cases as Ryals v. Canales, 767 S.W.2d 226, 228 (Tex. App.-Dallas 1989,
             orig. proceeding). Subject to these objections, Pentex Foundation has no
             documeP..tation in its possession responsive to this request.

      REQUEST FOR PRODUCTION NO. 8: Produce any communication dating back
      to September 1, 2008, including letters, tape recordings, or emails, that you have
      had with Howard Kirk concerning the Estate's attorney fees.

             RESPONSE: Pentex F(!)undation has no documentation in its possession
             responsive to this request.

      REQUEST FOR PRODUCTION NO. 9: Produce any communication dating back
      to January 1, 2013, including letters, tape recordings, or emails, that you have had
      with Howard Kirk concerning GBU Trust.

             RESPONSE: Pentex Foundation has no documentation in its possession
             responsive to this request. None

      REQUEST FOR PRODUCTION NO. 10: Produce any communication dating back
      to September 1, 2008, including letters, tape recordings, or emails, that you have
      had with Rickey Brantley or Scott Pelley concerning the Estate's attorney fees.

             RESPONSE: Pentex Foundation has no documentation in its possession
             responsive to this request.

      REQUEST FOR PRODUCTION NO. 11: Produce any communication dating back
      to January 1, 2013, including letters, tape recordings, or emails, that you have had
      with Danny Unger concerning GBU Trust.

             RESPONSE: Pentex Foundation objects to any such communications
             initiated after the anti¢ipation of litigation. Subject to these objections,
             Pentex Foundation has no documentation in its possession responsive to this
             request.

      REQUEST FOR PRODUCTION NO. 12: Produce any communication dating back
      to September 1, 2008, including letters, tape recordings, or emails, that you have
      had with Ken concerning the Estate's attorney fees.

             RESPONSE: Pentex Foundation has no documentation in its possession

      PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS                         Page3




421                                                                           Page     )
              responsive to this request.

      REQUEST FOR PRODUCTION NO. 13: Produce all documentation dating back
      to September 1, 2008, which you have concerning Renhaw, Inc., including the
      transfer of rights of the CSL to you, letters, emails, tape recordings, and any other
      records involving Renhaw, Inc ..

              RESPONSE: Please see Plaintiff/Intervenor 000123, 000034.

      REQUEST FOR PRODUCTION NO. 14: Produce any communication dating back
      to May 1, 2008, including letters, tape recordings, or emails, that you have had
      with Albert concerning GWB Trust.

             RESPONSE: Pentex Foundation objects to any such communications
             initiated after the anticipation of litigation and/or protected pursuant to the
             "joint defense doctrine' recognized in TEX. R EVID. 503{b)(1) and such
             cases as Ryals v. Canales, 767 S.W.2d 226, 228 (Tex. App.-Dallas 1989,
             orig. proceeding). Subject to these objections, Pentex Foundation has no
             documentation in its possession responsive to this request.

      REQUEST FOR PRODUCTION NO. 15: Produce any communication dating back
      to January 1, 2013, including .letters, tape recordings, or emails, that you have had
      with Albert concerning GBU Trust.

             RESPONSE: Pentex Foundation objects to any such communications
             initiated after the anticipation of litigation and/or protected pursuant to the
             "joint defense doctrine>' recognized in TEX. R EVID. 503{b)(1) and such
             cases as Ryals v. Canales, 767 S.W.2d 226,228 (Tex. App.-Dallas 1989,
             orig. proceeding). Subject to these objections, Pentex Foundation has no
             documentation in its possession responsive to this request.

      REQUEST FOR PRODUCTION NO. 16: Produce any communication dating back
      to May 1, 2008, including letters, tape recordings, or emails, that you have had
      from Albert concerning distributions from the Estate.

             RESPONSE: Pentex Foundation objects to any such communications
             initiated after the anticipation oflitigation and/or protected pursuant to the
             "joint defense doctrin¢" recognized in TEX. R EVID. 503(b)(l) and such
             cases as Ryals v. Can4les, 767 S.W.2d 226,228 {Tex. App.-Dallas 1989,
             orig. proceeding). Subject to these objections, Pentex Foundation has no
             documentation in its possession responsive to this request.

      REQUEST FOR PRODUCTION NO. 17: Produce any communication dating back
      to May 1, 2008, including letters, tape recordings, or emails, that you have had

      PENIEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GffiBS                        Page4




422                                                                           Page _ _i~J-
      with Albert concerning Pentex Trust.

             RESPONSE: Pentex Foundation objects to any such communications
             initiated after the anticipation of litigation and/or protected pursuant to the
             "joint defense doctrine" recognized in TEx. R. EVID. 503(b)(1) and such
             cases as Ryals v. Canales, 767 S.W.2d 226,228 (Tex. App.-Dallas 1989,
             orig. proceeding). Additionally, this request is outside the scope of
             discovery. Subject to these objections, Pentex Foundation has no
             documentation in its possession responsive to this request.

      REQUEST FOR PRODUCTION NO. 18: Produce any communication dating back
      to September 1, 2008, including letters, tape recordings, or emails, that you have
      had with Candy concerning GWB Trust.

             RESPONSE: Pentex Foundation has no documentation in its possession
             responsive to this request.

      REQUEST FOR PRODUCTION NO. 19: Produce any communication dating back
      to January 1, 2013, including letters, tape recordings, or emails, that you have had
      with Candy concerning GBU Trust.

             RESPONSE: Pentex Foundation has no documentation in its possession
             responsive to this request.

      REQUEST FOR PRODUCTION NO. 20: Produce all documents related to Pentex
      Trust's interest in the Estate and GWB Trust, and dating back to September 1,
      2008, including, but not limited to, documents verifying its existence, letters,
      emails, bank records, correspondence, and accountings.

             RESPONSE: Pentex Foundation has no documentation in its possession
             responsive to this request.

      REQUEST FOR PRODUCTION NO. 21: Produce any communication dating back
      to January 1, 2011, including letters, tape recordings, or emails, that you have had
      with Beverly Miller involving Albert.

             RESPONSE: Pentex Foundation objects to any such communications
             protected pursuant to the "joint defense doctrine" recognized in TEX. R.
             EVID. 503(b)(l) and such cases as Ryals v. Canales, 767 S.W.2d 226,228
             (Tex. App.-Dallas 1989, orig. proceeding). Subject to this objection,
             Pentex Foundation has no documentation in its possession responsive to this
             request other than as may be produced herewith.

      REQUEST FOR PRODUCTION NO. 22: Produce all documents upon which you

      PENTEX FOUNDATION'S RESPONSE TO DlSCOVERY FROM KENNETH GIBBS                         PageS



                                                                                        Exhibit
423                                                                           Page _
                                                                                       c<
                                                                                       _./
                                                                                        __
      base the claims against Candy and Ken in your Original Petition.

             RESPONSE: Pentex Foundation objects to this request as overly broad and
             fails to direct Plaintiff tQ any class or type of documents. See, Loftin v.
             Martin, 766 S.W.2d 14$ (1989). Subject to this objection, please see the
             documents attached to the Motion for Partial Summary Judgment submitted
             in this case.

      REQUEST FOR PRODUCTION NO. 23: Produce any communication dating back
      to January 1, 2011, including letters, tape recordings, or emails, that you have had
      with Beverly Miller concerni~g Pentex Trust.

             RESPONSE: Pentex Foundation objects to this request as outside the scope
             of discovery, and additionally as to any such commtmications protected
             pursuant to the "joint defense doctrine" recognized in TEX. R. EVID.
             503(b)(l) and such cas¢s as Ryals v. Canales, 767 S.W.2d 226,228 (Tex.
             App.-Dallas 1989, orig. proceeding). Subject to this objection, Pentex
             Foundation has no documentation in its possession responsive to this
             request.

      REQUEST FOR PRODUCTION NO. 24: Produce any communications dating
      back to January 1, 2011, including letters, tape recordings, or emails, that you have
      had with Beverly Miller concerning GBU Trust.

             RESPONSE: Pentex Foundation objects to any such communications
             initiated after the anticijpation of litigation and/or protected pursuant to the
             ']oint defense doctrine' recognized in TEX. R. EVID. 503(b)(1) and such
             cases as Ryals v. Cana,es, 767 S.W.2d 226, 228 (Tex. App.-Dallas 1989,
             orig. proceeding). Additionally, this request is outside the scope of
             discovery. Subject to these objections, Pentex Foundation has no
             documentation in its possession responsive to this request other than as may
             be produced herewith.

      REQUEST FOR PRODUCTION NO. 25: Produce any communications dating
      back to January 1, 2011, including letters, tape recordings, or emails, that you have
      had with Beverly Miller concerning GWB Trust.

             RESPONSE: Pentex Foundation objects to any such communications
             initiated after the anticlpation of litigation and/or protected pursuant to the
             ')oint defense doctrine" recognized in TEX. R. EVID. 503(b)(1) and such
             cases as Ryals v. CancOes, 767 S.W.2d 226, 228 (Tex. App.-Dallas 1989,
             orig. proceeding). Additionally, this request is outside the scope of
             discovery. Subject to these objections, Pentex Foundation has no
             documentation in its possession responsive to this request other than as may

      PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS                         Poge6




424                                                                           Page     L
             be produced herewith.
      REQUEST FOR PRODUCTION NO. 26: Produce all documents and
      communications dating back to September 1, 2008, including letters, tape
      recordings, or emails, that you have had with Rickey Brantley concerning the
      Estate's distributions to Heirs and the calculations of the Heirs' attorneys' fees.
             RESPONSE: Pentex Foundation has no documentation in its possession
             responsive to this request.
      REQUEST FOR PRODUCTION NO. 27: Produce all documents and
      communications dating back to September 1, 2008, including letters, tape
      recordings, or emails, that you have had with Scott Pelley concerning the Estate's
      distributions to Heirs and the calculations of the Heirs' attorneys' fees.
             RESPONSE: Pentex Foundation has no documentation in its possession
             responsive to this request.
      REQUEST FOR PRODUCTION NO. 28: Produce any communication dating back
      to September 1, 2008, including letters, tape recordings, or emails, that you have
      had with any representative of JW Operating Company concerning you yourself,
      Albert, GWB Trust, Pentex Trust, and GBU Trust.
             RESPONSE: Pentex Foundation has no documentation in its possession
             responsive to this request.
      REQUEST FOR PRODUCTION NO. 29: Produce any communication dating back
      to September 1, 2008, including letters, tape recordings, or emails, that you have
      had with any representative of Trio Consulting and Management, LLC, concerning
      you yourself, Albert, GWB Trust, Pentex Trust, and GBU Trust.
             RESPONSE: Pentex Foundation has no documentation in its possession
             responsive to this request.
      REQUEST FOR PRODUCTION NO. 30: Produce any communication dating back
      to September 1, 2008, including letters, tape recordings, or emails, that you have
      had with any representative of Devon Energy concerning you yourself, Albert,
      GWB Trust, Pentex Trust, and GBU Trust.
             RESPONSE: Pentex Foundation has no documentation in its possession
             responsive to this request.

      INTERROGATORY NO. 1: Explain your relationship with Pentex Trust,
      including details concerning your agreement with Pentex Trust to receive
      distributions from GWB Trust; your arrangement with Albert to act as Legal

      PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GffiBS                         Page7




425                                                                          Page    -7
      Representative for both entities; whether you or Pentex Trust was formed first; the
      management associated with Ptmtex Trust in Texas, as effected from a Panamanian
      locale; the manner in which you determine tax obligations; and arrangement with
      Pentex Trust concerning voting rights in GWB Trust

             ANSWER: Pentex Foundation objects to this interrogatory as outside the
             scope of permissible discovery and overly broad. Interrogatories may be
             used to ascertain basic legal and factual claims and defenses, but may not be
             used to force a party to marshal evidence." See, Rule 197 of the Texas Rules
             of Civil Procedure, at c0mment 1. Subject to this objection, Pentex
             Foundation answers as follows:

             Pentex Royalty Trust is a trust domestic to the United States that was created
             as a trust to take in all ~venue due from taxable sources within the United
             States, pay any U.S. taxes or other obligations due, and then distribute its
             remaining beneficial interests. Pentex Foundation is the sole beneficiary of
             Pentex Royalty Trust. :Pentex Royalty Trust has a paid trustee who is not
             associated, or familiar with, any other phase of Pentex Foundation. The tax
             obligations are figured, by computing and filing a Return 1042 with the
             Internal Revenue Servjce meeting the requirements of the Internal Revenue
             Code. The voting rights issue was always a problem because the purported
             trustees of GWB trust never had a clear and defined way of doing anything.
             For that reason, Pentex Foundation assigned it voting shares by proxy to Jim
             Walton as long as he was the purported trustee. We have no record of any
             official votes after Beverly Miller became the purported trustee.

      INTERROGATORY NO. 2: Detail your relationship with Albert, including
      specifics concerning his activities within your entity; on whose authority Albert
      serves as your Legal Representative; amounts of payment for Albert's services to
      you; percentages of distributions to you from GWB Trust which Albert ultimately
      receives; Albert's arrangements to pay Estate attorneys in order to uphold his
      responsibilities to the CSL and the FSA; Albert's payments of legal fees with
      regard to this lawsuit; Albert's involvement in this lawsuit (i.e., whether Albert was
      responsible for instigating the lawsuit); and all other involvement of Albert
      concerning your involvement with GWB Trust.

             ANSWER: Pentex Foundation objects to this interrogatory as outside the
             scope of permissible discovery and overly broad. Interrogatories may be
             used to ascertain basic legal and factual claims and defenses, but may not be
             used to force a party to marshal evidence." See, Rule 197 of the Texas Rules
             of Civil Procedure, at comment 1. Pentex Foundation objects to the terms of
             payments as confidential under the laws of Panama, and outside the scope of
             discovery in any event. Subject to these objection, Pentex Foundation
             answers as follows, and under a defintion of "you" and "your" to refer to

      PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS                       Page 8




426
                                                                             Page
             Pentex Foundation only as specified in the general objections:

             Pentex Foundation purchased an interest in the Contract for Sale that Albert
             Barcroft originally owned. It was mutually advantageous to continue to
             work with Albert to bring the terms of the contract to conclusion, and he
             served and serves on our behalf in the matter. To the knowledge ofPentex
             Foundation, Albert had ~o responsibilities to pay any attorneys other than
             John Skotnik in the matter, and such was not shown in any documentation
             presented to Pentex Foundation. When Pentex was forced to hire new
             counsel in the case, it did not have sufficient funds in the United States to
             pay the full retainer. Mr. Barcroft did. Pentex Foundation gave Mr.
             Barcroft money here, and he sent that money to Scott Smith in the United
             States. Mr. Barcroft definitely made Pentex Foundation aware that he
             thought there was a problem in the way proceeds were being paid by GWB
             Trust, if that qualifies as instigation. In brief, Barcroft was our express
             liaison with GWB trust, whatever it is.
      INTERROGATORY NO. 3: JExplain the reasons you came to believe that
      contingency fee attorneys were deducting their fees from the total due you, Ken,
      Candy, and Howard Kirk, then issuing one check to GWB Trust, including the
      rationale for believing that in excess of$ 1 million in attorney fees were due from
      Ken, Candy, and Howard Kirk; when and how you arrived at these alleged facts;
      and the reason that Beverly Miller was instructed to assign 57.19% interest in
      GWB Trust to GBU Trust, when you were entitled to a far smaller percentage.
             ANSWER: Pentex Foundation objects to this interrogatory as outside the
             scope of permissible discovery and overly broad. Interrogatories may be
             used to ascertain basic legal and factual claims and defenses, but may not be
             used to force a party to marshal evidence." See, Rule 197 of the Texas Rules
             of Civil Procedure, at comment 1. Subject to these objection, Pentex
             Foundation answers as follows, and under a defintion of"you" and "your" to
             refer to Pentex Foundation only as specified in the general objections:
             The percentage due Pentex Foundation under the Contract for Sale.
             Barcroft's share was 30% of everything Ken, Candy and Howard received.
             Ken, Candy and Howard each received 25%, for a total of75%, of the
             estates. Of the 75%, Pentex Foundation owned 30%, equaling 22.5% of
             everything distributed by the estate (75% X 30%=22.5%). The estate
             distributed mineral interests to GWB Trust equaling 35.04% of the total
             minerals owned by the estate. It also distributed 2.46% directly to John
             Skotnik in payment for his services as attorney (an amount due solely by
             Barcroft). Of the 35.04% distributed to GWB Trust, Pentex Foundation
             owned 20.04% (22.5% minus the 2.46% already distributed to Skotnik).
             20.04% is 57.19% of35.04%; thus, Pentex Foundation owned 57.19% of the

      PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS                      Page 9




427
                                                                          Page _ _  (-+J-
              minerals transferred to GWB Trust by the estate.

      INTERROGATORY NO. 4: Detail and explain the contents of all oral
      communications dating back to September 1, 2008, which you have had with
      Howard Kirk, including all agreements to cooperate with you, Albert or Danny
      Unger in this lawsuit; including your communications with Howard Kirk at the
      Tarrant case hearing on July 31,2014, including the reason for conferring with
      him, when he is a Defendant in this case; and disclose whether you consulted
      Howard Kirk in drafting your requests for Admissions and whether you assisted
      Howard Kirk in producing his responses to your demands for discovery, since he
      was capable of response to you within fewer than five (5) hours of receiving your
      Requests; and disclose whether John Skotnik, when acting as your Counsel,
      cooperated with Howard Kirk in motioning the Court to remove Ken as
      Independent Administrator of the Estate.

             ANSWER: Pentex Foundation objects to any such communications initiated
             after the anticipation of litigation and/or protected pursuant to the "joint
             defense doctrine" recognized in TEX. R EVID. 503(b)(l) and such cases as
             Ryals v. Canales, 767 S.W.2d 226, 228 (Tex. App.-Dallas 1989, orig.
             proceeding). Pentex Foundation objects to this interrogatory as outside the
             scope of permissible d~scovery and overly broad. Subject to these objection,
             Pentex Foundation answers as follows, and under a defintion of "you" and
             "your" to refer to Pentex Foundation only as specified in the general
             objections:

             Pentex Foundation has had no such communications with Howard Kirk.

      REQUEST FOR ADMISSION NO. 1: Admit or deny that Scott Smith and Howard
      Kirk consulted with each other at the July 31, 2014, hearing in the Tarrant County
      case.

             RESPONSE: Pentex Foundation objects to this request as (1) well outside
             the scope oflegitimate discovery; (2) a communication initiated after the
             anticipation of litigati<tm; (3) protected pursuant to the work product
             exemption from discovery; and/or (4) protected pursuant to the ''joint
             defense doctrine" recognized in TEX. R. EVID. 503(b)(l) and such cases as
             Ryals v. Canales, 767S.W.2d 226,228 (Tex. App.-Dallas 1989, orig.
             proceeding).

      REQUEST FOR ADMISSION NO. 2: Admit or Deny that you, Ken, Candy, and
      Howard Kirk are members of the GWB Family and Friends Trust.

             RESPONSE: Admit that Pentex Foundation is an an assignee of the
             business organization created pursuant to the CSL, if"you" refers to Pentex

      PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS                   Page 10




428                                                                     Page
             Foundation as discussed in the general objections; otherwise, deny.

      REQUEST FOR ADMISSION NO. 3: Admit or Deny that you were formed
      specifically because Albert stood to receive proceeds from the Estate as a result of
      the CSL and FSA, and Albert wanted the funds to flow through a third party in
      order to avoid federal tax and similar obligations.

             RESPONSE: Assuming that "you" refers solely to Pentex Foundation as
             discussed in the general objections, denied.

      REQUEST FOR ADMISSION NO. 4: Admit or Deny that you have received no
      money from GWB Trust.

             RESPONSE: Assuming that "you" refers solely to Pentex Foundation as
             discussed in the general objections: admit, as all money was received by
             Pentex Trust).

      REQUEST FOR ADMISSION NO. 5: Admit or Deny that Albert is your Primary
      Beneficiary.

             RESPONSE: Pentex Foundation objects to this request as outside the scope
             oflegitimate discovery. Subject to this objection, and assuming that "you"
             refers solely to Pentex Foundation as discussed in the general objections,
             denied.

      REQUEST FOR ADMISSION NO. 6: Admit or Deny that Pentex Trust is your
      Primary Beneficiary.

             RESPONSE: Pentex Foundation objects to this request as outside the scope
             of legitimate discovery. Subject to this objection, and assuming that "you"
             refers solely to Pentex Foundation as discussed in the general objections,
             denied.

      REQUEST FOR ADMISSION NO. 7: Admit or Deny that the GWB Trust
      document established the process and percentages by which Howard Kirk, Candy,
      Ken, and you received interest from the Estate.

             RESPONSE: Pentex Foundation objects to this request as misleading and
             assuming facts which do not exist. There is no known GWB Trust
             document. Subject to this objection, and assuming that "you" refers solely
             to Pentex Foundation as discussed in the general objections, denied.

      REQUEST FOR ADMISSION NO. 8: Admit or Deny that the GWB Trust Trustee
      is responsible for distributing assets to the. Beneficiaries according to the

      PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS                      Page II




429
      percentages specified in the GWB Trust document.

              RESPONSE: Pentex Foundation objects to this request as misleading and
              assuming facts which dq not exist. There is no known GWB Trust
              document. Subject to this objection, and assuming that "you" refers solely
              to Pentex Foundation as discussed in the general objections, denied.

      REQUEST FOR ADMISSION NO. 9: Admit or Deny that if the percentages of
      interest specified in the GWB Trust document are incorrect, then you are fully
      responsible for the inaccuracy because Albert, as your Legal Representative,
      entered into negotiations with the Estate's attorneys concerning the appropriate
      distributions.

             RESPONSE: Pentex Foundation objects to this request as misleading and
             assuming faCts which do not exist. There is no known GWB Trust
             document. Subject to tbis objection, and assuming that "you" refers solely
             to Pentex Foundation as discussed in the general objections, denied.

      REQUEST FOR ADMISSION NO. 10: Admit or Deny that you authorized Albert
      to serve as your Legal Representative with regard to GWB Trust, GBU Trust,
      Pentex Trust, and the Estate.

             RESPONSE: Pentex Foundation objects to this request as multifarious.
             Subject to this objection, and assuming that "you" refers solely to Pentex
             Foundation as discussed in the general objections, denied.

      REQUEST FOR AD:rvllSSION NO. 11: Admit or Deny that Pentex Trust is a Trust
      which Albert, acting on your behalf, established in the United States in order to
      receive funds because you are a foreign entity, and as such, it is difficult to receive
      distributions from the Estate.

             RESPONSE: Pentex Foundation objects to this request as multifarious.
             Subject to this objection, and assuming that ''you" refers solely to Pentex
             Foundation as discuss¢d in the general objections, denied.

      REQUEST FOR ADMISSION NO. 12: Admit or Deny that Albert, acting on your
      behalf, resisted Candy and Ken's inquiries into the legitimacy of your existence.

             RESPONSE: Assuming that "you'' refers solely to Pentex Foundation as
             discussed in the general objections, denied.

      REQUEST FOR ADMISSION NO. 13: Admit or Deny that there are active United
      States Federal Tax Liens filed against you in Texas.


      PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS                         Page 12




430
                                                                             Page
              RESPONSE: Pentex Foundation objects to this request as outside the scope
              oflegitimate discovery. ·Subject to this objection, and assuming that "you''
              refers solely to Pentex Foundation as discussed in the general objections,
              denied.

      REQUEST FOR ADMISSION NO. 14: Admit or Deny that Albert approached you
      previous to 2008 to invest in the settlement of the Estate.

             RESPONSE: Pentex Foundation objects to this request as outside the scope
             of legitimate discovery. Subject to this objection, assuming that "you" refers
             solely to Pentex Foundation as discussed in the general objections, Pentex
             Foundation has made reasonable inquiry and the information known or
             easily obtainable is insufficient to enable it to admit or deny this request.

      REQUEST FOR ADMISSION NO. 15: Admit or Deny that you invested $250,000
      for expenses related to the settlement of the Estate.

             RESPONSE: Pentex Foundation objects to this request as outside the scope
             of legitimate discovery. Subject to this objection, and assuming that "you"
             refers solely to Pentex Foundation as discussed in the general objections,
             denied.

      REQUEST FOR ADMISSION NO. 16: Admit or Deny that you were established
      after Albert entered into discussions with Candy, Howard Kirk, and concerning the
      settlement of the Estate.

             RESPONSE: Pentex Foundation objects to this request as outside the scope
             of legitimate discovery, unclear and ambiguous, and unspecified as to time.

      REQUEST FOR ADMISSION NO. 17: Admit or Deny that, Pentex Trust was a
      Beneficiary of GWB Trust with 24.965 16% interest.

             RESPONSE: Assuming that "you" refers solely to Pentex Foundation as
             discussed in the general objections, denied. Pentex Foundation held the
             Barcroft interests in the original Contract for Sale, but it is unclear as to how
             that was interpreted by the original purported trustee.

      REQUEST FOR ADMISSION NO. 18: Admit or Deny that you compensated
      Albert, John Skotnik, and Danny Unger for their services regarding the Estate and
      GWB Trust.

             RESPONSE: Assuming that "you" refers solely to Pentex Foundation as
             discussed in the general objections, denied.


      PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GffiBS                       Page 13




431                                                                           Page
      REQUEST FOR ADMISSION NO. 19: Admit or Deny that the GWB Trust owns
      35.04% of the assets that are still left in the estate, including real estate.

             RESPONSE: Pentex Foundation objects to this request as calling for pure
             legal question. Plaintiff has made reasonable inquiry and the information
             known to it or easily obtainable to it is insufficient with which to either
             admit or deny this request.

      REQUEST FOR ADMISSION NO. 20: Admit or Deny that GWB Trust receives
      oil and gas royalties from the Estate, from which administrative costs are deducted
      before the Trustee distributes the assets to the Beneficiaries, yourself including,
      according to the percentages as stated in the GWB Trust document.

             RESPONSE: Pentex Foundation objects to this request as misleading and
             assuming facts which do not exist. There is no known GWB Trust
             document. Subject to this objection, and assuming that "you" refers solely
             to Pentex Foundation as discussed in the general objections, denied.

      REQUEST FOR ADMISSION NO. 21: Admit or Deny that you have not received
      any funds from GWB Trust or the Estate.

             RESPONSE: Assuming that "you" refers solely to Pentex Foundation as
             discussed in the general objections, it is admitted that all funds to Pentex
             Foundation have come through Pentex Royalty Trust.

      REQUEST FOR ADMISSION NO. 22: Admit or Deny that Albert drafted the
      Pentex Trust document.

             RESPONSE: Pentex Foundation objects to this request as outside the scope
             of legitimate discovery. Subject to this objection: Denied.

      REQUEST FOR ADMISSION NO. 23: Admit or Deny that your Board of
      Directors profit, or have profited, from GWB Trust.

             RESPONSE: Pentex Foundation objects to this request as outside the scope
             oflegitimate discovery. Subject to this objection, and assuming that "you"
             refers solely to Pentex Foundation as discussed in the general objections,
             denied.

      REQUEST FOR ADMISSION NO. 24: Admit or Deny that you have distributed,
      or will distribute, to Albert any proceeds from GWB Trust in excess of the
      $250,000 which Albert claimed you originally invested in settlement of the Estate.

             RESPONSE: Pentex Foundation objects to this request as multifarious and

      PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS                          Page 14




432                                                                           Page
                                                                                                         /[<~         r
                                                                                                      ·:~~:\ :.   '
              speculative (when speaking about future events which may or may not
              occur). Pentex Foundation objects to this request as outside the scope of
              legitimate discovery.

      REQUEST FOR ADMISSION NO. 25: Admit or Deny that you authorized Albert
      to vote on your behalf in decisions concerning GWB Trust, from its' inception to
      around February 2014.

             RESPONSE: Assuming that "you" refers solely to Pentex Foundation as
             discussed in the general objections, admit that Albert had the authority to
             carry on all business in the United States for Pentex Foundation.

      REQUEST FOR ADMISSION NO. 26: Admit or Deny that Beverly Miller acts
      according to your instructions in performing her duties as Trustee of GWB Trust.

             RESPONSE: Assutni.tlg that "you" refers solely to Pentex Foundation as
             discussed in the general objections, denied.

      REQUEST FOR ADMISSION NO. 27: Admit or Deny that on September 11,
      2013, Albert, acting on your behalf, stated in an email that he refused to allow for
      Candy and Ken to remove their interest from GWB Trust.

             RESPONSE: Assuming that "you" refers solely to Pentex Foundation as
             discussed in the general objections, denied.

      REQUEST FOR ADMISSION NO. 28: Admit or Deny that, in or around
      November 2013, you, or Albert acting on your behalf, instructed the GWB Trust
      Trustee, Beverly Miller, to transfer 57.19% of the existing GWB Trust assets into a
      newly created trust, the GBU Trust.

             RESPONSE: Assuming that "you" refers solely to Pentex Foundation as
             discussed in the general objections, admit.

      REQUEST FOR ADMISSION NO. 29: Admit or Deny that you, or Albert acting
      on your behalf, informed Beverly Miller that, if she did not transfer 57.19% of
      GWB Trust assets into the GBU Trust, she would be held personally liable for any
      losses.

             RESPONSE: Assuming that "you" refers solely to Pentex Foundation as
             discussed in the general objections, admit that she was told she "could" be
             held responsible for not doing her duties.

      REQUEST FOR ADMISSION NO. 30: Admit or Deny that upon your
      instructions, or upon instructions from Albert acting on your behalf, Beverly Miller

      PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETII GWBS                         Page 15




433
                                                                             Page
      transferred 57.19% interest fro:m GWB Trust to GBU Trust.

              RESPONSE: If"you" refers solely to Pentex Foundation as discussed in
              the general objections, admit that Pentex Foundation demand to split the
              assets according to the Contract for Sale was honored by the Trustee,
              Beverly Miller.

      REQUEST FOR ADMISSION NO. 31: Admit or Deny that GWB Trust was
      formed to receive the Heirs' distributions from the Estate.

              RESPONSE: Admit that GWB trust was created by the expression of the
              Contract for Sale to help facilitate the terms of that Contract for Sale.

      REQUEST FOR ADMISSION NO. 32: Admit or Deny that your Original Petition
      admits that the FSA, as an extension of the CSL, is the subject of this suit.

              RESPONSE: Objection. The pleadings speak for themselves. Subject to
              this objection, assuming that "you" refers solely to Pentex Foundation as
              discussed in the general objections, denied.

      REQUEST FOR ADMISSION NO. 33: Admit or Deny that you protested moving
      this case to Tarrant County Probate Court No. 2 because the Estate was responsible
      for establishing the amounts of the distributions to the heirs, but you could not
      challenge the Estate because you would be disqualified as recipient of Estate assets
      due to the tenns of the FSA.

             RESPONSE: Pentex Foundation objects to this request as multifarious.
             Subject to this objection, assuming that "you" refers solely to Pentex
             Foundation as discussed in the general objections, denied.

      REQUEST FOR ADMISSION NO. 34: Admit or Deny that you instigated the
      Fannin County lawsuit.

             RESPONSE: Pentex Foundation objects to this request as argumentative.
             Subject to this objection, assuming that "you" refers solely to Pentex
             Foundation as discussed in the general objections, admit that it is the
             Plaintiff and filed this suit.

      REQUEST FOR ADMISSION N0.35: Admit or Deny that your lawsuit against
      Candy and Ken was filed as revenge because of their inquiries into the
      administration of GWB Trust.

             RESPONSE: Assuming that "you" refers solely to Pentex Foundation as
             discussed in the general objections, denied.

      PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GffiDS                       Page 16




434
                                                                             Page
      REQUEST FOR ADMISSION NO. 36: Admit or Deny that you have ordered and
      received assets from GWB Tn.tst in addition to the 24.96515% you were originally
      assigned.

             RESPONSE: Assuming that "you" refers solely to Pentex Foundation as
             discussed in the general objections, denied.

      REQUEST FOR ADMISSION NO. 37: Admit or Deny that you willingly engaged
      in discussions of the creation ofPentex Trust in order to avoid having to observed
      United States and Texas State law.

             RESPONSE: Pentex Foundation objects to this request as outside the scope
             oflegitimate discovery, Assuming that "you" refers solely to Pentex
             Foundation as discussed in the general objections, denied.

      REQUEST FOR ADMISSION NO. 38: Admit or Deny that you existed prior to
      2008 and that you provide multiple benefits to Beneficiaries other than Albert.

             RESPONSE: Pentex Foundation objects to this request as outside the scope
             of legitimate discovery. Assuming that "you" refers solely to Pentex
             Foundation as discussed in the general objections, denied as to the date, and
             admit the balance of this request.

      REQUEST FOR ADMISSION NO. 39: Admit or Deny that the Estate is
      responsible for the flow of cash to GWB Trust, which in turn flows to the
      Beneficiaries.

             RESPONSE: Denied.

      REQUEST FOR ADMISSION NO. 40: Admit or Deny that Candy does not have
      the authority to control the Estate's distributions to the Heirs.

             RESPONSE: Pentex Foundation has made reasonable inquiry and the
             information known or easily obtainable is insufficient to enable it to admit or
             deny this request.

      REQUEST FOR ADMISSION NO. 41: Admit or Deny that Ken does not have the
      authority to control the Estate's distributions to the Heirs.

             RESPONSE: Pentex Foundation has made reasonable inquiry and the
             information known or easily obtainable is insufficient to enable it to admit or
             deny this request.

      REQUEST FOR ADMISSION NO. 42: Admit or Deny that suing Ken individually

      PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS                      Page 17




435                                                                          Page
      was inappropriate, as Ken individually does not have the authority to control the
      Estate's distributions to the Heirs.
              RESPONSE: Denied.
      REQUEST FOR ADMISSION N0.43: Admit or Deny that Renhaw, Inc., received
      your interest in GWB Trust, then transferred it back to you.
              RESPONSE: If "you" refers solely to Pentex Foundation as discussed in the
              general objections, denied.
      REQUESTFORADMISSIONN0.44: Admit or Deny that you were effectively
      rendered a "nonentity" with regard to GWB Trust, because of the transfers as
      follows: Albert Barcroft> Renhaw > GWB Trust.
              RESPONSE: If"you" refers solely to Pentex Foundation as discussed in
              the general objections, denied.
      REQUEST FOR ADMISSION NO. 45. Admit or Deny that Howard Kirk and you
      worked together to remove assets from GWB Trust which did not belong to you in
      order to benefit unjustly from those assets.
              RESPONSE: If"you" refers solely to Pentex Foundation as discussed in
              the general objections, denied.
      REQUEST FOR ADMISSION NO. 46: Admit or Deny that prior to around
      November 2013, you did not question the distributions from GWB Trust.
              RESPONSE: If"you" refers solely to Pentex Foundation as discussed in
              the general objections, admit.
      REQUEST FOR ADMISSION NO. 47: Admit or Deny that you issued instructions
      via Albert to Beverly Miller concerning the administration of GWB Trust.
              RESPONSE: Ojbection. This request is ambiguous. Subject to this
              objection: Denied.
      REQUEST FOR ADMISSlON NO. 48: Admit or Deny that you occasionally hired
      and paid Danny Unger to perform minor accounting work, as well as research.
              RESPONSE: Admit that he did some accounting for Pentex Foundation.
      REQUEST FOR ADMISSION N0.49: Admit or Deny that you were aware that
      you were entitled to less than a quarter of the proceeds in GWB Trust, after

      PENTEX FOUNDATION'S RESPONSE TO DISCOVERY 1-'ROM KENNETH GIDBS                  Page 18




436                                                                      Page
      expenses, when you, or Albert acting on your behalf, instructed Beverly Miller to
      transfer 57.19% interest in GWB Trust to GBU Trust.

              RESPONSE: Denied.

      REQUEST FOR ADMISSION NO. 50: Admit or Deny that you were aware that
      you were entitled to only 24.96516% interest of GWB Trust at the time you
      instructed Beverly Miller to transfer 57.19% to GBU Trust.

              RESPONSE: Denied.

      REQUEST FOR ADMISSION NO. 51: Admit or Deny that you benefitted
      substantially from GWB Trust since the time it was established in September 2008.

              RESPONSE: Pentex Foundation objects to this request as vague and
              ambiguous.

      REQUEST FOR ADMISSION NO. 52: Admit or Deny that Albert drafted the
      Original Petition in this lawsuit.

              RESPONSE: Denied.

      REQUEST FOR ADMISSION NO. 53: Admit or Deny that no changes could be
      made to GWB Trust distributions unless approved by unanimous vote.

              RESPONSE: Pentex Foundation objects to this request as assuming facts
              that have not been established, namely the terms of the GWB Trust. Admit
              that the CSL which established GBW Trust required that all 4 parties to the
              CSL sign any amendments before a notary.

      REQUEST FOR AD:MISSION NO. 54: Admit or Deny that, once Renhaw
      transferred its share of assets to the GWB Trust, Ken, Candy, and Howard Kirk are
      the only three (3) remaining members, as well as Beneficiaries, of the GWB Trust,
      and that therefore you are no longer a Beneficiary of GWB Trust.

             RESPONSE: PentexFoundation objects to this request as multifarious.
             Subject to this objection: Denied.

      REQUEST FOR ADMISSION NO. 55: Admit that Albert authorized the
      percentages of interest which the Estate assigned to the Heirs.

             RESPONSE: Objection. This request is ambiguous and vague. It is also
             outside the scope of legitimate discovery. Pentex Foundation has made


      PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GffiBS                   Page 19




437
              reasonable inquiry and the information known or easily obtainable is
              insufficient to enable it to admit or deny this request.

      REQUEST FOR ADMISSION NO. 56: Admit or Deny that, under the terms of the
      FSA, an Heir who disputes the terms can lose his or her interest in the Estate.

             RESPONSE: Denied.

      REQUEST TO ADMISSION NO. 57: Admit or Deny that Admit your inclusion
      of Howard Kirk as a Defendant in this Cause is a smoke screen designed to deflect
      from the fact that Howard Kirk is cooperating with you in this lawsuit and in the
      lawsuit filed in Tarrant County, which involves Albert, Howard Kirk, Candy, and
      Ken.

             RESPONSE: The Intervenor objects to this request as argumentative,
             multifarious, and outside the scope of legitimate discovery. Subject to this
             objection: Denied.

      REQUEST FOR ADMISSION NO. 58: Admit or Deny that John Skotnik was
      forced to withdraw from representing you in this case, as he originally
      assisted in the Estate settlement involving the Heirs.

             RESPONSE: Pentex Foundation objects to this request as calling for a
             legal conclusion as to why Mr. Skotnik withdrew, and as being outside the
             scope of any legitimate discovery. Subject to these objections, Pentex
             Foundation admits that it was agreed in the CSL that John Skotnik could
             represent Barcroft's interests if a dispute ever arose, admit that Defendants
             reneged on that provision of the CSL, thereby breaching the contract.

      REQUEST FOR ADMISSION NO. 59: Admit or Deny that you, or your
      representative, assisted Howard Kirk in his Answer and his Admission responses
      in this case.

             RESPONSE: Objection. This request is outside the scope of legitimate
             discovery. It invades the protections for communications made after the
             anticipation of litigation and/or protected pursuant to the "joint defense
             doctrine" recognized in TEX. R. EVID. 503(b)(1) and such cases as Ryals v.
             Canales, 767 S.W.2d 226, 228 (Tex. App.·-Dallas 1989, orig.
             proceeding). Subject to these objections: Denied.

      REQUEST FOR ADMISSION NO. 60: Admit or Deny that you, or your
      representative, assisted Howard Kirk in his Answer in the Tarrant County case.



      PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS                     Page20




438
              RESPONSE: Objection. This request is outside the scope of legitimate
              discovery. It invades the protections for communications made after the
              anticipation of litigation and/or protected pursuant to the "joint defense
              doctrine" recognized in TEX. R. EVID. 503(b)( 1) and such cases as Ryals v.
              Canales, 767 S.W.2d 226,228 (Tex. App.-Dallas 1989, orig. proceeding).
              Subject to these objections: Denied.

      REQUEST FOR ADMISSION NO. 61: Admit or Deny that you function as a
      shell entity for Albert.

              RESPONSE: Pentex Foundation objects to this request as outside the scope
              of discovery and is vague. Subject to this objection: Denied.

      REQUEST FOR ADMISSION NO. 62: Admit or Deny that, on or about December
      2, 2013, Albert sent Candy Walton and Ken letters stating that Albert, as agent for
      Pentex and Renhaw, were invoking the right to demand a split of the GWB Trust
      assets, as you wished to withdraw from GWB Trust.

              RESPONSE: Admit that Pentex demanded a split of assets under the CSL.

      REQUEST FOR ADMISSION NO. 63: Admit or Deny that Albert has been your
      Legal Representative up until there was a demand to have Albert deposed.

              RESPONSE: Objection. This request is ambiguous with respect to the term
              "Legal Representative~" Subject to this objection, Mr. Danny Unger is the
              designated representative for Pentex Foundation in this litigation.

      REQUEST FOR ADMISSION NO. 64: Admit or Deny that you informed GWB
      Trust Beneficiaries of all transfers of your interest in GWB Trust each time a
      transfer was effected.

              RESPONSE: Admit that the beneficiaries were informed.

      REQUEST FOR ADMISSION NO. 65: Admit or Deny that on December 18,
      2013, signing in the capacity of "Legal Representative" of Pentex, you noticed the
      Estate, including Executor Kenneth Gibbs, and the Estate's (3) three attorneys
      that a substantial part of GWB's Trust assets must be distributed and made
      payable to the GBU Trust.

              RESPONSE: Pentex Foundation objects to this request as multifarious.
              Subject to this objection, it is admitted that the document numbered
              Plaintiff/Intervenor 00035 is authentic and speaks for itself.



      PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNh"'TH GIBBS                  Page 21




439                                                                          Page
      REQUEST FOR ADMISSION NO. 66: Admit or Deny that, you are a not-for-profit
      private foundation established and operated in Panama.

             RESPONSE: Admit
      REQUEST FOR ADMISSION NO. 67: Admit or Deny that in a very small sentence,
      at the end of a long tirade of explanations, GWB Trust accounting reflected that
      20.04% of the 35.04% ofGWB Trust's assets had been transferred to GBU.

              RESPONSE: Pentex Foundation objects to this request as argumentative and
              vague. Subject to this objection, admitted that the document numbered
              Plaintiff/Intervenor 00035 is authentic and speaks for itself.

      REQUEST FOR ADMISSION NO. 68: Admit or Deny that GWB Trust is
      responsible for paying administrative costs, such as property taxes, for assets assigned to
      GWB Trust by the Estate and which benefit you.

             RESPONSE: Pentex Foundation has made reasonable inquiry and the
             information known or easily obtainable is insufficient to enable it to admit or deny
             this request.

      REQUEST FOR ADMISSION NO. 69: Admit or Deny that Albert, as your Legal
      Representative, exerted undue influence over Beverly Miller.

             RESPONSE: Objection vague. Subject to this objection: Denied.

      REQUEST FOR ADMISSION NO. 70: Admit or Deny that, although you are
      based in Panama, the majority of your affairs originate in Texas.

             RESPONSE: Pentex Foundation objects to this request as outside the scope
             of discovery and is vague. Subject to this objection: Denied.

      REQUEST FOR ADMISSION NO. 71: Admit or Deny that Albert, not you, is
      the one ultimately receiving income out of the Estate.

             RESPONSE: Pentex Foundation objects to this request as outside the scope
             of discovery and is vague. Subject to this objection: Denied.

      REQUEST FOR ADMISSION NO. 72: Admit or Deny that you donate funds to a
      medical facility that is located outside of the United States, claiming the act to be
      the primary reason for your existence.

             RESPONSE: Pentex Foundation objects to this request as outside the scope
             of discovery and is vague. Subject to this objection: Denied, other than to
             admit that Pentex Foundation donates to numerous causes.

      PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS                          Page22




440
      REQUEST FOR ADMISSION NO. 73: Admit or Deny that Albert assisted in
      calculating the percentages due Heirs from the Estate and that Albert provided the
      calculations to the attorneys of the Estate.

             RESPONSE: Pentex Foundation objects to this request as outside the scope
             of discovery. Subject to this objection, Pentex Foundation has made
             reasonable inquiry and the information known or easily obtainable is
             insufficient to enable it to admit or deny this request.

      REQUEST FOR ADMISSION NO. 74: Admit or Deny that neither Ken
      individually nor Candy individually had or now have the authority or the ability to
      contro] the distributions from the Estate to the Heirs.

             RESPONSE: Pentex Foundation objects to this request as outside the scope
             of discovery. Subject to this objection, Pentex Foundation has made
             reasonable inquiry and the information lmown or easily obtainable is
             insufficient to enable it to admit or deny this request.

      REQUEST FOR ADMISSION NO. 75: Admit or Deny that Albert assigned John
      Skotnik a percentage of his iriterest as detailed in the FSA.

             RESPONSE: Objection. The terms of the FSA speak for themselves.
             Subject to this objection, Pentex Foundation admits that the FSA, as
             submitted as Plaintiff/Intervenor 00059-122 is authentic and that John
             Skotnik was assigned a share.

      REQUEST FOR ADMISSION NO. 76: Admit or Deny that the subject matter in
      this case is not in the Fannin County Court's jurisdiction, since land in which GWB
      Trust holds interest remains in and under the control of the Estate.

             RESPONSE: Denied.

      REQUEST FOR ADMISSION NO. 77: Admit or Deny that you drafted and
      persuaded Howard Kirk Gibbs to file documents in this Cause and in the Fannin
      County District Court Cause on your behalf.

             RESPONSE: Objection again. This request is outside the scope of
             legitimate discovery. It invades the protections for communications made
             after the anticipation of litigation and/or protected pursuant to the "joint
             defense doctrine" recognized in TEx. R. EVID. 503(b)(l) and such cases as
             Ryals v. Canales, 161 S.W.2d 226,228 (Tex. App.-Dallas 1989, orig.
             proceeding). Subject to these objections: Denied.



      PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS                     Page 23




441
 REQUEST FOR ADMISSION NO. 78: Admit or Deny that GWB Trust
 document, not the CSL or the FSA, establishes the exact percentage of interest
 which Pentex held.

        RESPONSE: Denied.

 REQUEST FOR ADMISSION NO. 79: Admit or Deny that Candace Walton and
 Kenneth Gibbs do not want to sell the Homeplace.

        RESPONSE: Pentex Foundation has made reasonable inquiry and the
        information known or easily obtainable is insufficient to enable it to admit or
        deny this request.

 REQUEST FOR ADMISSION NO. 80: Admit or Deny that the land in which
 GWB Trust holds interest belongs to the Estate, and therefore GWB Trust issues
 must be handled as Estate matters.

        RESPONSE: Objection. This calls for a pure legal question. Subject to this
        objection, Pentex Foundation has made reasonable inquiry and the
        information known or easily obtainable is insufficient to enable it to admit or
        deny this request.

 REQUEST FOR ADMISSION NO. 81: Admit or Deny that you transferred
 interest in GWB Trust to Renhaw, Inc., because doing so aided Albert in eluding
 the Internal Revenue Service's collection activities against him.

        RESPONSE: Pentex Fo1;1ndation objects to this request as outside the scope
        of discovery and is vague. Subject to this objection: Denied.

 REQUEST FOR ADMISSION NO. 82: Admit or Deny that GWB Trust is a
 legitimate Trust, which was designed to receive interest from the Estate and which
 has distributed you substantial assets in the past.

        RESPONSE: Objection. This calls for a pure legal question. Subject to this
        objection, Admit that it is a business organization created under the terms of
        the CSL.

 REQUEST FOR ADMISSION NO. 83: Admit or Deny that the FSA is a
 legitimate and binding contract

        RESPONSE: Admit.

 REQUEST FOR ADMISSION NO. 84: Admit or Deny that Albert drafted the
 CSL.

 PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIDBS                      Page 24


                                                                                   Exhibit
442                                                                      Page   )lj_
              RESPONSE: Objection this calls for a pure legal conclusion. Subject to
              this objection, admit as to our understanding of that to be the case.
      REQUEST FOR ADMISSION NO. 91: Admit or Deny that Candy and Ken are
      not responsible for any tortious interference between GWB Trust and yourself, as
      neither Candy nor Ken ever interfered with the appropriate distributions to you of
      approximately one-quarter (1/4) interest in GWB Trust.
             RESPONSE: Object to this request as multifarious and vague. Subject to
             these objections: Denied.
      REQUEST FOR ADMISSION NO. 92: Admit or Deny that Albert breached the
      FSA.

             RESPONSE: Denied.
      REQUEST FOR ADMISSION NO. 93: Admit or Deny that Albert breached the
      CSL.
             RESPONSE: Denied.
      REQUEST FOR ADMISSION NO. 94: Admit or Deny that you are bound by the
      conditions of the FSA.
             RESPONSE: Admit that some of the provisions of the FSA apply to Pentex
             Foundation and any other successor to the interest originally conveyed to
             :Mr. Barcroft.

      REQUEST FOR ADMISSION NO. 95: Admit or Deny that Danny Unger has
      been your Legal Representative since the inception of this lawsuit.
             RESPONSE: Objection. This request is ambiguous with respect to the term
             "Legal Representative." Subject to this objection, it is admitted that Mr.
             Danny Unger is the designated representative for Pentex Foundation in this
             litigation.
      REQUEST FOR ADMISSION NO. 96: Admit or Deny that Albert, not Danny
      Unger, initiated this lawsuit on your behalf.
             RESPONSE: Objection. This request is outside the scope oflegitimate
             discovery. It invades the protections for communications made after the
             anticipation oflitigation, the attorney/client privilege and work product
             communication.


      PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIDBS                       Page 26




443
                                                                           Page
      REQUEST FOR ADMISSION NO. 97: Admit or Deny that on a yearly basis,
      GWB Trust provided you accountings concerning income and distributions to
      Beneficiaries.

              RESPONSE: Objection. This request is vague. Subject to that objection, it
              is admitted that only tax returns were submitted.

      REQUEST FOR ADMISSION NO. 98: Admit or Deny that you breached the
      FSL.

             RESPONSE: Denied.

      REQUEST FOR ADMISSION NO. 99: Admit or Deny that Scott Smith stated
      during the July 31, 2014, hearing in Tarrant County, that he received his retainer
      from beneficiaries ofGBU Trust, including Danny Unger.

              RESPONSE: Objection. This request is outside the scope of legitimate
              discovery. Additionally, the transcript of that proceeding would be the best
              evidence of what was said.

      REQUEST FOR ADMISSION NO. 100: Admit or Deny that Scott Smith stated
      during the July 31, 2014, hearing in Tarrant County, that he took this case because,
      he like most attorneys, wi11 take any case that can pay him a retainer.

             RESPONSE: Objection. This request is outside the scope of legitimate
             discovery. Additionally, the transcript of that proceeding would be the best
             evidence of what was said.

                                                    Respectfully submitted,




                                                    Scott Smith
                                                    State Bar Number 18688900
                                                    120 South Crockett Street
                                                    P.O. Box 354
                                                    Shennan, Texas 75091-0354
                                                    e-mail smithlaw@ainnail.net
                                                    Facsimile (903) 870-1446
                                                    Telephone {903) 868-8686




      PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS                     Page27




444
                                             CERTIFICATE OF SERVICE
               I do hereby certify that a true and correct copy of the above and foregoing document was served,
      by certified mail, return receipt requested number 7009 2250 0000 2311 4187 toChristy L. Lee, Esq., of
      Law Offices of Christy Lee, P.C., 777 Main Street, Suite 600, Fort Worth, Texas 76102, and to Howard
      Kirk Gibbs, ProSe, at 4360 Western Center Blvd., Suite            Ft. Worth, Texas 76137, on this the 3rd day
      of September, 2014.




      PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIDBS                                            Page 28




445                                                                                          Page
                                Unsworn Delcaration Pursuant tq
                             TEX. CIV. PRAC. & REM.CODE § 132.001

                                                                                        . I reside at
                                                                                       -"-='~..JL%'-----
                                                                                       1 am the
      designated representati e of P ntex Foundation, that I have read the above and
      foregoing Answers to Interrogatories and subscribes to the same on behalf of Pentex
      Foundation; that said responses, subject to inadvertent or undiscovered errors, are
      based on and therefore limited by the records and information still in existence,
      presently recollected and this far discovered in the course of the preparation of these
      responses; that, consequently, 1 reserve the right to make changes in responses if it
      appears at any time that omissions or errors have been made therein or that more
      accurate information is available; and that subject to the limitations set forth herein,
      the said responses are true and correct and within my personal knowledge. I have
      been advised that Rule l97~~(d)(2:},92~S, npt,requ~r~:~~t;I swear to interrogatory
      answers about persqiis ,~~.t~. kP..~,\\'.J~9gt?-~Pf·F..~J~YMtf~Q!St,,tri~l witnesses or legal
      contentions. Since I am not an attorney, I therefore do not swear to the truth of any
      interrogatory answers containing. inf<lr:rnatjqQ~ ,~bout persons with knowledge of
      relevant facts, trial witnesses 'or legal contentions. I declare under penalty of; perjury
      that the foregomgJnstrU1lJep~ ls:tW~andqorr~Qi..-. >~··:.- :                          <,....· ·                           ,
                                                                                              ,•   "'      I




                                                                                          ''I··...._· .•

                                                     . .. '   '.   -   ~   '                                   .   r".




                                                                                                                         ·'.'   I




                        ·'                                                     ... L



                                          ...   ;.   ....




446
\   I   'I




                                                                                                I     EXHIBIT
                                                                                                       F
                                          State,.,ent Given Under Penalty of Perju(Y            I
               I, Albert Lynn Barcroft, being born on August 20, l9461n Rotan, Texas, give the following
               statement under penalty of perjury under the laws of the United States of America.

                 I am a resident of Guatemala, Central America, and have resided here for more than five (5)
                 years without interruption. I am aware that I have been asked to attend a hearing and other
             -- -leg·alproceedings·linnelJnltea'States:-niereby certifY ari(faffirm-the folfowfng-fur-the record:

               1.     I am not an employee of PENTEX FOUNDATION;

               2.   I do not receive a salary or other compensation for the services I provide for PENTEX
               FOUNDATION;

               3.     PENTEX FOUNDATION does not, and cannot, control my activities, time or movement,
               nor can it compel me to attend legal matters in the United States;

              4.     I am currently under doctor's care for heart and arthritic conditlQns that have recently
              gotten worse;

              5.      My doctors has informed me that any extended travel would be. life threatening for me;
              and,

              6.      While I am still technically an agent for PENTEX FOUNDATION, my duties have been
              greatly reduced in recent months due to my health, and I am not authorized to give testimony
              on behalf of PENTEX FOUNDATION at this point In time.

              1hereby certify under penalty of perjury under: the laws of the United States of America that
              the foregoing Is true and correct.

              Further, I certify under penalty of perjury under the prevailing laws ofthe State ofTexas that
              the statements In this docum~nt are true and correct, and not Intended to mislead.

              Executed this 3rd day of September, 2014, In San Marcos, lzabal, Guaternala, Central America.




                      y
              Agent/Legal Representative
              PENTEX FOUNDATION




    447
.   '




                                            Dr. Leone/ Antonio Ramirez Montenegro
                                                       MEDICINA INTERNA YELECTROCARDIOGRAFIA
             Clfnlca Medica                                                     COHSULTORIO
                                                                    Cl!nlca Casa de Los Almendros
        Los Almendros
                 Salud ymSs ...                                    Calle de Atras 9·66 Morales lzabal
                                                                            Tel.: 7823-2060
                                                 EMERGENCIAS: 5412-0504 • E-mall:leoram_chey@yahoo.com




                                                                                         __ .,   _____ --·---·--···--· - --.---------
                                                                                                                                . --· -·---
                                                                                                                                      - .. -.




                              El infrascrito Dr. LEONEL ANIONIO RAMIREZ MONTENEGRO, medico y cirujano
                              colegiado activo numero ocho mil ciento treinta y cuatro, egresado de Ia
                              Universdiad de San Carlos de Guatemala CERTIFICA: Que dentro de los arch!vos
                              de este consultorio aparece            reglst~i;) d'~i senor ALBERT LYNN BARCROFT.                                   Quien
                              padece    HIPERTENSION               ARTERIAL,          fiBRilACION                AURICULAR                 CRONICA      Y
                              OSTEOARTROSIS DEGENERATIVA pE Ro·b.ILlAS, por lo que no puede viajar
                              debido su codidon de salud,                 Ia   t~af :re impide movilizarse por si mismo, asr
                              como     tambien     representa                 desgo   para          su     vida        dado        que          problema
                              cardiovascualar he emperado en los ultlrrios meses.                                     A solicitud de Ia parte
                              interesada se extiende Ia presehte al ve'intlcich6 de Agosto del dos mll catorce .


                                                          .   ,,
                                               , l"~~~ "~~lrel
                                             0uEDlCO INTHII.fi'tl\
                                                  Col ') 136
                                                                          ,
                                                                   .. I
                                                              ~                           r'                         -----------....



                                                                                                                        J
                                                              • • ._ -'f.J. •.. e-c.-r:,-z:..-!:1!.,
                                                                    .. _,;;       .? ., -
                                                                                                            W'   ~-.                   ,


                                                         Dr. Leonel Ramirez. ·~ontenegr:o ·'·. ·.
                                                                          Medicina l.n!.¢-na                     {
                                                                            Col. 8,134                           ~




                                                                                        PLAINTIFF'S

                                                                                  I       EXHIBIT
                                                                                          D
                                                                                  I
448                                                                                                                                              Page
            Although an exact interpretation from Spanish to English of a document of this sort Is
            virtually Impossible, below is a general interpretation Into English of the foregoing medical
            report and evaluation for your convenience:




- ---------::-::= -   _:..._::-=:---=-:---:::.-----·--~--=---.::--:"":".::-.:=-:::.-:·.·:-:·-:.:::·-:-.7::::-·-
                                                                                                                    . -- -----------
                                                                                                                  -----   -~-----·-------··   ·- ..-----------------
                                                                                                                                                     --- ---.- --
                                                                                                                                                        ~




            The undersigned Dr. LEONELANTONIO MONTENEGR RAMIREZ, physician and surgeon gives
            active number eight thousand one hundred thirty-four, graduated in the University of San
            Carlos De Guatemala CERTIFY that within the files of this office record appears Mr. Albert Lynn
            Barcroft who suffers HYPERTENSION, CHRONIC ATRIAL FIBRILLATION AND KNEE
            OSTEOARTHRITIS DEGENERATIVE therefore he is not able travel due to his health condition,
            this condition makes it difficult for him to move himself, and also this represents a life risk
            because the cardiovascular problem has worsened in recent months. At the request of the
            interested party present at the August 28 of two thousand fourteen runs.




449 __
  _;;__                                                                                                                                                                Page
                                                      The   Grt::;:.~t   Escape, the luxury yacl1t, that damaged
 B<:lize's pristine barrier reef on l'lovemrH<r thirtieth, 2009 is gQm:: but not tornotten. T111:re were
 reports that it was~ I€J-Ikinq fuei into the sea nnd that it would have been mond. Well, the yacht is
 no ionqer <H the site whr::re   ir grounded. a wasn't a salvage          company, !Jut r-.:1otl1er Nature herself
 an•:i t::urn:nts have drifted the wrecltafJe towaais Punta Manabique. Boaters in the Bay of
 Honcluras have been advisee! to b;; on the iookoHt bec;.wse H r:ou!cl cause an acddant. When we
 ia:>! reported on the incident, the Department oi Envlronnwn1 indic.nted the ,:;wner of the vessel,
 tdbert Barr.roH, l1ad suffc~retl heart failure and hac! to be mshecl to Guatemala to Si:<ek treatment
 1lovWNer, accordmg to Roy McNett, the odii:or of an online newspaper in Hio Dulce, Guatemala, AI
 l3arcroft has takNJ up residence in l'1io Dulce and has aclmitted t.hat ho faked his heart attack so he
 wouldn't be tal<en to Belize City. McNett said that at Uw wnbsiw's biog,
 Bmcrort has indicated !hat Hw authori!ies rn Belize have not lHJ!ci him responsible for the
 groundinti·
 Vi<~   Phone· Roy Mci'>Jett, Editor, Rio Dulce Cilisme Vinr.licator




450
 f.~.,1!e   are fccaf(Ui :n RuJ rJufco an{t tht:t't~~ is quttt.:: a larq6· Voating caJnnuutity oui t;ett;'J. probaf)fy close to four
 rrunctro<1 teats tf}at          at~;:, JkJrc . •4nd rn&riy      of t/t(: l.>oaft":;tS i:ere an: upst?t -r1!;out i.-1.4tat hapr..letK·:d. ()f' CYJl!tse


 v,:rilie:d ut      iili."

 Jose Sanchez
 "Tht:-      ~c1st \'le itc:~uc! Ctf   Albert   Barc1nn~   t:c   l'l~~cJ   a tv::an aHHck   CHK~   he; \Vc\nt !o   f3uott;;~naln <:l~'ld k.~rt   tr1ece.
 V\li"wt do you aciunl!y i'.now? ·
 Via Phone: Roy McNett
 ·f-fr: tclri n te lie: f8heo Uk: heart altacf< so !Je V<Jf)U/cin ·r h:Jvf: /(;              ()O   (;ntn i3e!ile (~ity
 Jo:w        Sanche~:




 "\JJa      Phon~~;    F\oy fvtcNe-u
 "l tt_. i}ir.:' ! Jc·f lJi.;rfe a heat i attack '·'




                                                                                                                                                 Exhibit
                                                                                                                               Page _ _,_,J__
451
       ?-.nd vmat has become of Hle boat I!S no :onof:f whore it WdS rw<:1r th0 S<tpodills Cayes wlit:iB il landed
      on the !T.'d?"
      Vi<! Phone: Roy McNett
      "Titars !fn: SGd thirir;t a!Jout H T!:o ooat is novt fio.atin~J ~vfth rhe tide f;otv_.,_/et:Jn r~nlize an<:i c~u;;ternaia.
      Tlu~y·e·s c::~ }J!}Dto an our Vi'tH>site- tliat silOt:'/S tf}t: hoat out tih-:!6'. Jf;; a navJS}ation lu::zar(j_ irs very




      ··si:lce yon ~.;poke       t(i   f\Alster Baret oit hHs htj accepted responsib!iity kif lanett no fHs bo.~1t on the rt:t;(?''
      Via P!10ne: Roy McNeH
      -h,~    s v;rrften in tile !Jfng that he IW$ no iines at ol/ l.furinQ /iie it:quines_ .Ire was not ilelU responsible cr


      .Jose Sanchez


      nn:l<in{J !'\as t}een resolved as ye1 ·
      Via Phono: Roy McNett
      "VV'o   flf(}    surp1iSDcl Uiat Bcdize has not a.s yet finecl hirn foJ the dan1aoe to tl1c reef       !-{(} ;::-; f1t?rv   ut Rg; l)ulce
      anJ     llc~'s   iJuytnq so:1tt1 fc1nd   Jn~re   nuv,.:. ,.

      We have been unable to reach Martin Alegria, Chlof Environment<:d Officer, for comment.
      However, the editor of Rio Du!r.:e Chisme Vindicator happily provided us with Albert Barcroft's
      email addmss. So if the authorities or anyone would !i!{e to express their feelings about the
      incident, the Great Escape's owner can be reached at AIBan::roft@leormrc!online.nB'i




         Viewers please notw This lntemet newscRst is a verhatirn transcript of our {Wen inn television
              newscast. Where speakers usc Kr!oi, we .<ltternpt !o faithfully reproduce tht.' quotes using a
                                                                    standard spelling system.



                                                                                                                                      Exhibit     J::
                                                                                                                   Page_]--'---::::·,~~.,.;.-,-..-
452
                                                CAUSE   No. CV-14-41665

PL-:NTEX FOUNDATION                                         )             IN THE DISTRICT COURT
          PLAINTIFF,                                        )
                                                            )
vs.                                                         }             336~"~~ JUDICIAL DISTRICT
                                                            )
KENNETH YEHN GII3BS; AND                                    )
CANDACE GIBBS WALTON; AND                                   )
IIOWARD KIRK GIBBS,                                         )
          DEFENDANTS.                                       )             FANNIN COUNTY, lEX AS


       THE STATE OF TEXAS SUBPOENA JlUCES TECUM FOR ORAL DEPOSITION

TO: Angclli Martha Polanco Carrasco, President, Chairman, and Director or Pcntcx Foundation

c/o Scott Smith, 120 South Crockett. Street. Sherman. Texas 75091-0354.

          YOU ARE COMMANDED by the State ofTexas to appear at 120 South Crockett Street,

Sherman. Texas 75091-0354. on the 13th day ofOctohcr. 2014. at 10 o'clock a.m., to attend and

give testimony at a deposition. Angelli Martha Polanco Carrasco is be deposed to her personal

knowledge of tht.! following: ( l) the incorporation of Pentcx Foundation, (2) daily activities of

Pentcx Foundation, (3) all monies received from the Estate of Bert Gibbs. and GWB Family and

Friends Trust. (4) the board minutes on or about August 4. 2014, in which you agreed to file suit

against Kenneth Gibbs and Candace Gibbs in Fannin County, and {5) Albert Barcrolt"s and

Danny Unger's legal authority to act on Pcntcx Foundation's be halL

          The deposition \Viii be stenographically recorded by Merit Cmut Reporters, 307 West 7th

Street. Stc. 1350, For1 Worth, Texas 76102, ( 817) 336-3042, or such other qualified court

reporter as may be designated. Such deposition when taken will be used in evidence upon the trial

of this cause. The deposition will continue from day to dny until completed. All counsel and

parties arc invited to attend and cross-examine as they may deem proper.


TilE STAn: OJ' TEXA'i SIHlPOENII                                                   CAliSE No. CV-14·41665            ..... .
I'!~Nn"X FO/JNIJ.-ITION Is. G/11/lS, 1-:TA!..                                                          _ •/i ;{~ l:o:!':~.~!J/~1''
                                                                                                        ~-
                                                                                                  Exhibit Jf·"t\,.
                                                                                                                       1

453                                                                                   Page---L/__ of         ',&           ;
                                    ENr·:QRCEMENT OF SUBPOENA

        Pursuant to Texas Rules of Civil Procedure No. 176.8, failure by any person without

adequate excuse to obey a subpoena upon that person may be deemed a contempt of the court

from which the subpoena is issued or a district court in the county in which the subpoena is

served, and may be punished by line or conlinemenL or both.

                                            PUCES TECUM

YOU ARE FURTHER COMMANDED to produce and permit inspection and copying of

documents or tangible things in your custody or control as follows (if not otherwise noted. the

date is since the inception of Pentex Foundation, November 1, 2008):

    I. A true and correct copy of all incorporation paperwork and annual board meeting minutes

        for Pcntcx Foundation.

    2. A true and correct copy of your resume.

    3. A lrue and correct copy          or your   protessional cei1iticates and qualifications to be a

        president, chairman, and hoard member of an international entity.

    4. A true and correct copy of all documents showing Albert Barcroft's and Danny Unger's

        legal authority to act on Pcntcx Foundation's behalf.

    5. True and conect copies of all drafts of the Contract for Sale of Land, Mineral Rights and

        Royalties and all other Assets or Monies Received from the Estate of Bert Hughes Gibbs.

        Kathryn G. Gibbs. and/or the Mary L. Houseworth Twst(s) or "The Kathryn Houseworth

        Gibbs Irrevocable Trust" (the "CSL") since January l, 2005.

    6. True and correct copies of the assignments of the CSL to and from Pcntex Foundation.




TilE STATE OF TEXAS SUDPOEN,\                                                    Ct\USE No. CV -14-41665
PENTEX FO!.IXDATION VS. GIBBS, H7'AL.




454                                                                                  Page 2
The subpoena is prepared and issued for Defendants Kenneth Gibbs and Candace Walton. by

Counsel. in accordance with Rule 176 ofthc Texas Rules ofCivil Procedure.

         Issued on September. 2. 2014.

                                                       LAW OFFICES OF CHRISTY LEE. P.C.
                                                                             /'~
                                                                  />")   /     '
                                                                   )·/,./
                                                              ll .)"--
                                                              /

                                                       ----~----­
                                                       Christy L. Lee
                                                       Texas State Bar No. 24052302
                                                       777 Main Street, Suite 600
                                                       Fort Worth, TX 76102
                                                       Office: (817) 504-6075
                                                       Fax: (800) 43 7-790 I
                                                       clce@christyleelaw.com

                                                       ATTORNEY FOR KENNETH GIBBS
                                                       AND CANDACE WALTON

                                         CERTIFICATE OF SERVICI~

I hereby certify that a true and correct copy of the above and foregoing document was delivered.
pursuant to Texas Rules of Civil Procedure and Rule II Agreement, to the following parties on
this 2nd day of September, 2014:

Pentex Foundation am/                                         Via fax and email
GBU Friends and Associates Trust
c/o Scott Smith, Attorney of Record
120 South Crockett Street
Sherman, TX 75091-0354

Howard Kirk Gibbs                                             Via mail and email
9929 Crawford Farm Drive
Fort Worth. TX 76244




                                                       Christy L. Lee



TilE STATE OF TEXAS SU!Jl'OENA                                                     CAUSE NO. CV-14-41665
Pr:Nrr:x FouNn,trmN vs Gums. f:'TAt ..                                                                 -3-
                                                                                                 Exhibit
                                                                                               :3
                                                                                      Page_~L.:::;__
455
.. ~·
.



                                                 CAUSE NO. CV -14-41665

          PENTEX FOUNDATION                                )
                PLAINTIFF,                                 )
                                                           )
          vs.                                              )
                                                           )
          KENNETH VERN GIBBS; AND                          )
          CANDACE GIBBS WALTON; AND                        )
          HOWARD KIRK GIBBS,                               )
                DEFENDANTS.                                )                  FANNIN COUNTY, TEXAS


                                                 NOTICE OF HEARING

                  COME NOW, Candace Walton and Kenneth Gibbs, Defendants, by and through their

          counsel of record, Law Offices of Christy Lee, P.C., and notice you of a hearing scheduled

          concerning Defendants' Motion for Leave of Court to File Third-Party Petition. This hearing is

          set for September 30, 2014, from 8:30 AM to 12 PM, in 336111 Judicial District Court of Fannin

          County, Texas.

                                                         Respectfully submitted,

                                                         LAW OFFICES OF CHRISTY LEE, P.C.




                                                         Christy I!. Lee
                                                         Texas State Bar No. 24052302
                                                         777 Main Street, Ste. 600
                                                         Fort Worth, Texas 76102
                                                         (817) 504-6075
                                                         (800) 437-7901- Fax
                                                         clee@christylee1aw.com




          NOTICE OF HEARING                                                             CAUSE No. CV -14-41665
          PENTEX FOUNDATION 1'. GIBBS, liT AL.                                                              -!-



        456
..


                                            CERTIFICATE OF SERVICE

     I certify that a true and correct copy of the above Notice of Hearing was delivered, pursuant to
     Texas Rules of Civil Procedure, to the following parties on this 19th date of September, 2014:



     Howard Kirk Gibbs                              Mail
     4360 Western Center Blvd., No. 205             Email: hkgibbs@gmail.com
     Fort Worth, TX 76157

     Pentex Foundation and                          Mail
     GBU Family and Friends Trust                   Email: smithlaw@airmail.net
     c/o Scott Smith, Attorney
     120 South Crockett Street
     Sherman, TX 75091-0354




                                                       ~-     . -L. . ;_
                                                    Christy L. Lee




     NOTICE OF HHARJNG                                                            CAUSE NO. CV -14-41665
     PENTEX FOUNDATION I~ G/JJB.\; ETA/,.                                                             -2-




     457
                                    CAUSE No. CV-14-41665

PENTEX FOUNDATION                              )
       ~~.                                     )
                                               )
vs.                                            )
                                               )
KENNB1H VERN GIBBS; AND                        )
CANDACE GIBBS WALTON; AND                      )
HOWARDKIRKGIBBS,                               )
     DEFENDANTS.                               )                F ANN1N COUNIY; TEXAS



                     DEFENDANTS' MOTION TO COMPEL DISCOVERY
                      FROM GBU F'lliJmDs AND AssOCIATES TRUST

       Come now, Defendants Kenneth "Ken" Vern Gibbs and Candace "Candy" Walton,

through their Counsel of Record, Law Offices of Christy Lee, P.C., and file this Motion to

Compel Discovery from GBU Friends and Associates Trust ("GBU Trust"), Intervenor. Ken

served GBU Trust his First Request for Discovery on August 12,2014. Attached as Exhibit A is

Joshua Unger, Trustee's Response to Discovery from Kenneth Gibbs ("Ken").

             H. MOTION TO COMPEL TilE PRODUCI'ION OF DocuMENTS AND REsPONSFS
              TO INTERROGATORIES AND ADMISSIONS BY JOSHUA UNGER, AS TRUSTEE

Production of Documents.

        I.       GBU Trust served incomplete documentation to Ken on September 3, 2014.

GBU Trust objected to the allowable production of information crucial to Ken's defense. GBU

Trust indicated that it would supplement documentation as found. To date, no amended

documentation has been produced. Ken seeks an Order overruling the objections of Joshua

Unger, as Trustee of GBU Trust, and compelling discovery as follows:

                 Request for Production Nos. 2, 4- S, 1, 9- 11, 14- 18, 21 - 25,
                 33, 36, 38- 39, 41 -54, 51- 59, 62, 64, and 68- 72.


DEFENDANI'S' ManON TO COMPEL DISCOVERY
FROM GBU FRIENDS AND AssoclATES TRUST                                   CAUSBNo. CV-14-41665
PENTEXFOUNDA170NJI. GIBBS, El'AL.                                                        -1-


458
        Ken appeals to the Court because GBU Trust's objections to production requests were
 not appropriate, as follows:

        2.      GBU Trust objected to Request for Production Nos. 2, 7, 9- 11, 14- 18, 21,23-
 25, 41 - 54, 51 - 59, 62, and 68, based on the joint defense doctrine. The documentation
 requested is not covered by the joint defense doctrine, as none of the involved parties are argued
 or proven to be allied litigants. In re XL Specialty IIISW'ance Company and Cambridge
 Integrated Services, Group, Inc., 2012 WL 2476851 (Tex. June 29, 2012). The documentation
 requested involves evidence relating to the following:

            A. Pentex Foundation as the Beneficiary to GWB Trust;
            B. Albert Barcroft's involvement with GWB Trust;
            C. Danny Unger's involvement with GWB Trust;
            D. Danny Unger's involvement with GBU Trust as relates to this Cause;
            E. Danny Unger's involvement as it relates to Pentex Royalty Trust;
            F. Albert Barcroft's knowledge of the distributions of the attorneys' fees by the
               Estate of Bert Hughes Gibbs (''the Estate");
            G. Albert Barcroft's involvement with Pentex Royalty Trust;
            H. Albert Barcroft's communications concerning distributions from the Estate and
               distributions of attorneys' fees by the Estate;
            I. Albert Barcroft's communications concerning Pentex;
            J. Communications with Ken concerning distributions of the Estate's attorneys'
               fees;
            K. Communications with Beverly Miller concerning this lawsuit, Tarrant County
               Probate Court No. 2 Cause No. 2005-0000146-2-D, Pentex, GBU Trust, GWB
               Trust, distributions from the Estate, distributions of attorneys' fees by the Estate,
               distributions from GWB Trust, and Albert Barcroft;
            L. Communications with Howard Kirk Gibbs concerning GBU Trust, Pentex, Pentex
               Trust, GWB Trust, the Heirs to the Estate, distributions from the Estate,
               distributions of attorneys' fees by the Estate, and this lawsuit; and
            M. Communications with Danny Unger concerning Pentex, distributions from the
               Estate, attorneys' fees distributed by the Estate; and communications involving
               transfers in which Albert Barcroft engaged on behalf of Pentex, Pentex Royalty
               Trust, Renhaw, Inc., GBU Trust, and any other entity.

         3.     Request for Production Nos. 4 and 64 are allowable and not protected from
 discovery. Albert Barcroft, creator ofPentex Foundation, Pentex Royalty Trust, GWB Trust, and
 GBU Trust, and Joshua Unger, Trustee of GBU Trust, are both known tax protesters. GBU Trust
 was fraudulently created in' order to avoid paying federal income taxes and continue their tax
 fraud schemes. Tax returns and infonnation relevant to tax returns are discoverable when they
 are relevant to the cause or when they are likely to lead to relevant information concerning the
 cause. Hall v. Lawlis, 907 S.W.2d 493 (Tex. 1995); Chamberlain v. Cherry, 818 S.W.2d 201
 (Amarillo 1991). Crime, including fraud, is an exception to the assertion of client-attorney

 DEFENDANTS' MOTION TO COMPEL DISCOVERY
 FROM GBU FRIENDS AND AsSOCIATES TRUST                                       CAUSBNO. CV-14-41665
 PENTEX FOUNDATION V. GIBBS, E1' AL.                                                          -2-


459
privilege. Plaintiff and Counsel are engaged in fraud before this Court, and Plaintiff is
committing tax fraud. The objection to No. 64 as overly broad is ridiculous. No. 64 speciracally
asks, "Produce any copy of any payments you made to the Internal Revenue Service of
Department of Treasury," and No.4 states, "Produce a copy of your IRS Form 1041 for 2013."

        4.     The objection of invasion of privacy and harassment to Request for Production
Nos. 5, and 69 - 72 is not appropriate, and frankly ridiculous. Axelson, Inc. v. Mci/hany, 798
S.W.2d 500, 553 (Tex. 1990). The Request seeks infonnation about income to GBU Trust, which
was established solely to receive distributions from GWB Trust. GBU Trust states that it has not
received the money from GWB Trust to which it is entitled. Defendants strongly object to this
assertion and lawsuit. Defendants are entitled to know how much money GBU Trust has
received. All related discovery, including OBU Trust's distributions to members, is allowable, as
the discovery is likely to lead to discovery relevant to this Cause. Again, the objection to
"outside scope of legitimate discovery" is not an appropriate objection.

        5.      The objection of overly broad categories to Request for Production Nos. 5, 22, 33,
36, 38, 39, and 64 is not appropriate. The Requests posit that the infonnation requested is to date
back to the inception of GBU Trust (November 1, 2013). Again, the objection to "outside scope
of legitimate discovery" is not an appropriate objection. Also, see No. 4 above. In addition, in
response to No. 22 ("produce all documents upon which you base the claims that you are the
'real party in interest in this suit ... "'), the response was, "objection as it is overly broad and
invades work product [and protected]." What? How is this overly broad? And even more
confusing, why is GBU Trust refusing to provide information concerning its declaration that it is
the real party in interest in this litigation? Defendants are entitled to this information, as it is
likely to be a crucial element in their defense.

        6.     The objection of work product and client-attorney privilege to Request for
Production Nos. 22, and 38 - 39 is not appropriate. Such an objection points to furtherance of
fraud. Jim Waller Homes, Inc. v. Foster, 593 S.W.2d 749, 752 (Tex. Civ. App.- Eastland 1979,
no writ). Texas Rules of Evidence Rule No. 503(d)(l). As Intervenor, GBU Trust must provide
evidence of the claims to the assets currently under dispute. Joshua Unger, as Trustee of GBU
Trust, was not involved with the Estate's calculations for the attorneys' fees in dispute. No
client-attorney privilege or work product privilege can attach. Also, see No. 5 above.

        7.     The objection of falling outside the scope of legitimate discovery to Request for
Production Nos. 6, 64, and 69 - 72 is not an appropriate objection to discovery, and all
information should be produced immediately, as that information promises to lead to discovery
highly relevant to this Cause.

Resoonses to Interrogatories.

       8.      The objections to Interrogatory No. 2 and 4 as being outside the scope of
pennissible discovery and overly broad and assuming facts not in evidence are not appropriate.
The Interrogatories ask for specific information concerning GBU Trust's relationship to the CSL

DEFENDANTS' MOTION TO COMPEL DISCOVERY
FROM GBU FRIENDS AND ASSoclATES TRUST                                        CAUSENo. CV-14-41665
PENTEX FOUNDA'170N Y. GIBBS, EI' AL                                                              -3-


460
and FSA, and GBU Trust's intervention in this lawsuit. The answers to the Interrogatories
promise to lead to relevant information concerning this lawsuit Facts presented in the
Interrogatories are not assumed, but evidenced by information provided by GBU Trust.

Responses to Admissions.

        9.      The response to Request for Admission No. 50 is not appropriate. GBU Trust
claims to have made reasonable inquiry concerning calculations for percentages due Heirs from
the Estate, as calculated by Albert Barcroft, but GBU Trust was unable to obtain the information.
Counsel for GBU Trust admitted to having repeated contact with Albert Barcroft and could
easily respond with an admission or denial.

        I0.    The objection to Request for Admission No. 65 is not appropriate. The Request
addresses the creation of the CSL, which Plaintiff argues is crucial to this lawsuit. The Request
does not fall outside the scope of legitimate discovery, as an Admission or Denial promises to
lead to relevant discovery.

                                    II. PRAYER TO THE COURT.

       Ken respectfully prays that the Court:

           II.   Compel GBU Trust and its Trustee, Joshua Unger to comply with this discovery

request;

           12.   GBU Trust should pay all attorney fees associated with the drafting and

presentation of this Motion; and

           13.   And any other relief the Court finds appropriate.

                                                Respectfully submitted,




                                                Christy L. Lee
                                                Texas State Bar No. 24052302
                                                777 Main Street, Ste. 600
                                                Fort Worth, Texas 76102
                                                (817) 504-6075
                                                (800) 437-7901 -Fax
                                                clee@christyleelaw.com



DEfENDANTS' MOTION TO COMPEL DISCOVERY
FROM GBU FRIENDS AND ASSOCIATES TRUST                                          CAUSENO. CV-14-41665
PENTK'( FOUNDATION V. GIBBS, ET AL.                                                             -4-


461
                                                ATIORNEY FOR CANDACE WALTON AND
                                                KENNETH GIBBS



                                  CERTIFICATE OF CONFERENCE

 This document was provided to Scott Smith on September 22, 2014, concerning the production
 of discovery as requested in Kenneth Vern Gibbs's First Request for Discovery to GBU Friends
 and Associates Trust. Scott Smith did not comply with any ofthe request in this document, nor
 responded to my email, and refused to take my phone call. Agreement could not be reached;
 therefore, it is presented to the Court for determination.


                                                       ~
                                                Christy L. Lee




 This Motion to Compel Discovery from GBU Friends and Associates Trust is set for hearing on
 the _ _ day of                             , 2014, in the 3361h Judicial District Court of
 Fannin County, Texas, at           M.



                                                Judge Presiding



                                        CERTIFICATE OF SERVICE

 I certify that a true and correct copy of the above Defendants' Motion to Compel Discovery from
 GBU Friends and Associates Trust was delivered. pursuant to Texas Rules of Civil Procedure, to
 the following parties on this 25th date of September, 2014:



 Howard Kirk Gibbs                              Mail
 4360 Western Center Blvd., No. 205             Email: hkgibbs@gmail.com
 Fort Worth, TX 76157




 DEFENDANTS' MOTION TO COMPEL DISCOVERY
 FROM GBU FRIENDS AND ASSOCIATES TRUST                                     CAUSE NO. CV -14-41665
 PENTEX FOUNDATION V. GI/JBS, &T AI•.                                                         -5-


462
Pentex Foundation, and                    Email: smithlaw@ainnail.net
GBU Friends and Associates Trust          Fax:
c/o Scott Smith, Attorney of Record
120 South Crockett Street
Shennan, TX 75091-0354




                                          Christy L. Lee




 DEFENDANTS' MOTION TO COMPEL DISCOVERY
 FROM GBU FRIENDS AND ASSOCIATES TRUST                                  CAUSE NO. CV -14-41665
 PENTEX FOUNDATION V. GIBBS, ET AL.                                                        -6-


463
                                        NO. CV-14-41665

 PENTEX FOUNDATION,                              §             IN THE DISTRICT COURT OF
               Plaintiff                         §
                                                 §
 v.                                              §
                                                 §             FANNIN COUNTY, TEXAS
 KENNETH VERN GIBBS, CANDACE                     §
 GffiBSWALTONandHOWARD                           §
 KIRK GIDBS,   Defendants                        §             336'b JUDICIAL DISTRICT

                      JOSIHJA UNGER, TRUSTEE'S RESPONSE
                      TO DISCOVERY FROM KENNETH GIDBS

 TO:    KelUleth Vern Gibbs, by and through his attorney of record.

        COMES NOW, Joshua Unger, Trustee of the GBU Friends and Associates
 Trust, Intervenor, files this its response to the First Request for Discovery received
 on August 12,2014, and would show as follows:

                                   GENERAL OBJECTION

        The discovery was served upon "GBU Friends and Associates Trust", when
 in reality the Intervenor is Joshua Unger, Trustee of the GBU Friends and
 Associates Trust. Intervenor assumes this is an oversight, and will respond in his
 capacity as Intervenor.

       Intervenor objects to the Instructions and Defmitions to the extent they
 enlarge the responsibilities of a litigant under the Texas Rules of Civil Procedure.
 The Intervenor will respond subject to the Rules.

        Intervenor objects to producing any documents in the offices of counsel. To
 the extent there are documents to be produced, they will be produced at the offices
 of counsel for the responding party.

      Submitted herewith are documents marked as Plaintiff/Intervenor 0000 I-
 000257.

                       RESPONSE TO DISCOVERY REQUESTS

 REQUEST FOR PRODUCTION NO. I: Produce all documents dating back to
 September I, 2008, that you have in your possession concerning the GWB Trust.

        RESPONSE: None


 JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS                        Page I



                                                                                     Exhibit
464
 REQUEST FOR PRODUCTION NO. 2: Produce all documents dating back to May
 1, 2008, that you have in your possession concerning Pentex.

        RESPONSE: Intervenor objects to any such documents created after the
        anticipation of litigation and/or protected pursuant to the "joint defense
        doctrine" recognized in TEX. R. EVID. 503(b)(1) and such cases as Ryals v.
        Canales, 767 S.W.2d 226,228 (Tex. App.-Dallas 1989, orig. proceeding).
        Subject to these objections, see, the Pentex Foundation organization papers
        and the demand that assigned its share of the Contract to GBU Trust.
        Plaintiff/Intervenor 000001-000022, 000027-000033, 000035-000040,
        000135-000256.

 REQUEST FOR PRODUCTION NO. 3: Produce all documents proving your
 existence and validity, including a true and correct copy of the original Trust
 document, names of all Trustees who have served since your inception, and names
 of your members and beneficiaries.

        RESPONSE: See, Plaintiff/Intervenor 000041-000049.

 REQUEST FOR PRODUCTION NO.4: Produce a copy of your IRS Form 1041 for
 2013.

        RESPONSE: Objection, the request is made merely to harass and no other
        purpose, as tax returns are generally not discoverable, see Hall v. Lawlis, 907
        SW2d 493 (Tex. 1995); Chamberlain v. Cherry, 818 SW2d 201 (Amarillo
        1991).

 REQUEST FOR PRODUCTION NO. 5: Produce a copy of all monthly statements
 from all bank accounts (or any accounts owned through other fmancial institutions)
 owned by GBU Trust from the date of your inception to the present.

        RESPONSE: Intervenor objects to this request as outside the scope of
        legitimate discovery, invasive of privacy, and overly broad.

 REQUEST FOR PRODUCTION NO. 6: Produce any communication dating back
 to the date of your inception, including letters, tape recordings, or emails, that you
 have had with any representative of ConocoPhillips concerning you yourself,
 Albert, GWB Trust, Pentex, Pentex Trust, or the Estate as it relates to GWB Trust or
 GWBTrust.

        RESPONSE: The Intervenor is searching for documents, if any, which may
        be responsive to this request. If any such documents are located this response
        will be supplemented.


 JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GffiBS                  Page2




465
 REQUEST FOR PRODUCTION NO. 7: Produce any communication dating back
 to the date of your inception, including letters, tape recordings, or emails, that you
 have had with Albert concerning GWB Trust.

         RESPONSE: Intervenor objects to any such documents created after the
         anticipation of litigation and/or protected pursuant to the "joint defense
         doctrine" recognized in TEX. R. EVID. 503(b)(1) and such cases as Ryals v.
         Canales, 767 S.W.2d 226, 228 {Tex. App.-Dallas 1989, orig. proceeding).
         Subject to these objections, no such documents exist.

 REQUEST FOR PRODUCTION NO. 8: Produce any communication dating back
 to the date of your inception, including letters, tape recordings, or emails, that you have
 had with Howard Kirk concerning GWB Trust.

         RESPONSE: No such documents exist.

 REQUEST FOR PRODUCTION NO. 9: Produce any communication dating back to
 the date of your inception, including letters, tape recordings, or emails, that you have had
 with Danny Unger concerning GWB Trust.

         RESPONSE: Intervenor objects to any such documents created after the
         anticipation of litigation and/or protected pursuant to the ')oint defense doctrine"
         recognized in TEX. R. EVID. 503(b)(1) and such cases as Ryals v. Canales, 767
         S.W.2d 226,228 (Tex. App.-Dallas 1989, orig. proceeding). Subject to these
         objections, no such documents exist.

 REQUEST FOR PRODUCTION NO. 10: Produce any communication dating back to
 the date of your inception, including letters, tape recordings, or emails, that you have had
 with Danny Unger concerning GBU Trust.

         RESPONSE: Intervenor objects to any such communications initiated after the
         anticipation of litigation and/or protected pursuant to the "joint defense doctrine"
         recognized in TEX. R. EVID. 503(b)(l) and such cases as Ryals v. Canales, 767
         S.W.2d 226,228 {Tex. App.-Dallas 1989, orig. proceeding). Subject to this
         objection, Intervenor is searching for any responsive documents and if they are
         located this response will be supplemented.
 REQUEST FOR PRODUCTION NO. 11: Produce any communication dating back to
 the date of your inception, including letters, tape recordings, or emails, that you have had
 with Danny Unger concerning Pentex Trust.
         RESPONSE: Intervenor objects to any such documents created after the
         anticipation of litigation and/or protected pursuant to the ')oint defense doctrine"
         recognized in TEX. R Evm. 503(b)(1) and such cases as Ryals v. Canales, 767

  JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS                       Pagel




466
             S.W.2d 226, 228 (Tex. App.-Dallas 1989, orig. proceeding). Subject to these
             objections, no such documents exist except as may be indetified in response to
             Request for Production number 2.

      REQUEST FOR PRODUCTION NO. 12: Produce any communication dating back to
      the date of your inception, including letters, tape recordings, or emails, that you have
      had with Ken concerning GWB Trust.
             RESPONSE: No such documents exist.
      REQUEST FOR PRODUCTION NO. 13: Produce any communication dating back to
      the date of your inception, including letters, tape recordings, or emails, that you have had
      with Ken concerning Pentex Trust.
             RESPONSE: No such documents exist.
      REQUEST FOR PRODUCTION NO. 14: Produce any communication dating back to
      the date of your ince,Ption, including letters, tape recordings, or emails, that you have had
      with Albert concemmg the Estate's distributions of assets and the calculations of the
      Heirs' attorneys' fees related to services involving the settlement of the Estate.
             RESPONSE: Intervenor objects to any such documents created after the
             anticipation of litigation and/or protected pursuant to the ')oint defense doctrine"
             recognized in TEx. R EVID. 503(b)(1) and such cases as Ryals v. Canales, 767
             S.W.2d 226,228 (Tex. App.-Dallas 1989, orig. proceeding). Subject to these
             objections, no such documents exist.                       .
      REQUEST FOR PRODUCTION NO. 15: Produce any communication dating back to
      the date of your inception, including letters, tape recordings, or emails, that you have had
      with Albert concerning Pentex Trust.
             RESPONSE: futervenor objects to any such documents created after the
             anticipation of litigation and/or protected pursuant to the ')oint defense doctrine"
             recognized in TEX. R EVID. 503(b)(1) and such cases as Ryals v. Canales, 767
             S.W.2d 226,228 (Tex. App.-Daflas 1989, orig. proceeding). Subject to these
             objections, no such documents exist.
      REQUEST FOR PRODUCTION NO. 16: Produce any communication dating back to
      the date of your inception, including letters, tape recordings, or emails, that you have had
      from Albert concemmg distributions from the Estate.
             RESPONSE: futervenor objects to any such documents created after the
             anticipation of litigation and/or protected pursuant to the ''joint defense doctrine"
             recognized in TEx. R. EVID. 503(b)(l) and such cases as Ryals v. Canales, 767
             S.W.2d 226, 228 (Tex. App.-Daflas 1989, orig. proceeding). Subject to these
             objections, no such documents exist.

      JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GffiBS                       Page4




467
      REQUEST FOR PRODUCTION NO. 17: Produce any communication dating back to
      the date of your ince,Ption, including letters, tape recordings, or emails, that you have had
      with Albert concernmg Pentex.
             RESPONSE: Intervenor objects to any such documents created after the
             anticipation oflitigation and/or protected pursuant to the "joint defense doctrine"
             recognized in TEx.REVID. 503(b)(1) and such cases as Ryals v. Canales, 767
             S.W.2d 226,228 (Tex. App.-Dallas 1989, orig. proceeding). Subject to these
             objections, no such documents exist.
      REQUEST FOR PRODUCTION NO. 18: Produce any communication dating back to
      the date of your inception, including letters,--tape-recordings, or-emails,- that-you have-had
      with Ken, individually, as having any authority or influence on the distributtons of the
      Estate attorney fees.
             RESPONSE: Intervenor objects to any such documents created after the
             anticipation oflitigation and/or protected pursuant to the ')oint defense doctrine"
             recognized in TEX. R EVID. 503(b)(1) and such cases as Ryals v. Canales, 767
             S.W.2d 226, 228 (Tex. App.-Daflas 1989, orig. proceeding). Subject to these
             objections, no such documents exist.
      REQUEST FOR PRODUCTION NO. 19: Produce any communication dating back to
      the date of your inception, including letters, tape recordings, or emails, that you have had
      with Candy, individually, as having any authority or influence on the distributions of the
      Estate attorney fees.
             RESPONSE: No such documents exist.
      REQUEST FOR PRODUCTION NO. 20: Produce all documents related to Pentex
      Trust's interest in the Estate and GWB Trust, and dating back to the date of your
      inception, including, but not limited to, docwnents verifying GWB Trust's existence,
      letters, emails, bank records, correspondence, and accountings.
             RESPONSE: No such documents exist.
      REQUEST FOR PRODUCTION NO. 21: Produce any communication dating back to
      the date of your inception, including letters, tape recordings, or emails, that you have had
      with Beverly Miller mvolving Pentex.
             RESPONSE: Intervenor objects to any such documents created after the
             anticipation of litigation and/or protected pursuant to the "joint defense doctrine"
             recognized in TEX. R. EVID. 503(b)(l) and such cases as Ryals v. Canales, 767
             S.W.2d 226, 228 (Tex. App.-Daflas 1989, orig. proceeding). Subject to these
             objections, no such documents exist.
      REQUEST FOR PRODUCTION NO. 22: Produce all docwnents upon which you base
      the claims that you are the "real party in interest in this suit," including, but not limited
      to, correspondence, contracts, agreements, assignments of interest, and transfers.
      JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS                        Page5




468
        RESPONSE: Intervenor objects as overly broad and invade the work product
        exemption from discovery and the attorney/client privilege. Whether a document
        relates to a legal contention made in the pleadings is plaiilly a determination made
        by legal counsel, or at best, a determination made by and between counsel and
        client. Absent a rule to the contrary, these determinations are protected
        information. TEX.R. CN.P. 197.1 allows ~'contention" interrogatories: "An
        interro~atory may inquire whether a party makes specific legal or factual
        contentions . . .. (emphasis added). Thus, for interrogatories, by rule there can be
        no objection that contention interrogatories invade the attorney/client or work
        product exemption. There is no such corresponding rule for requests for
        production. Subject to this objection, see Plaintiff/Intervenor 000040-000049.
 REQUEST FOR PRODUCTION NO. 23: Produce any communication dating back to
 the date of your inception, including letters, tape recordings, or emails, that you have had
 with Beverly Miller concerning GBU Trust.
        RESPONSE: Intervenor objects to any such documents created after the
        anticipation of litigation and/or protected pursuant to the ')oint defense doctrine"
        recognized in TEX. R. EVID. 503(b)( 1) and such cases as Ryals v. Canales, 767
        S.W.2d 226, 228 (Tex. App.-Daflas 1989, orig. proceeding). Subject to these
        objections, no such documents exist.
 REQUEST FOR PRODUCTION NO. 24: Produce any communications dating back to
 the date of your inception, including letters, tape recordings, or emails, that you have had
 with Beverly Miller concerning GWB Trust.
        RESPONSE: Intervenor objects to any such documents created after the
        anticipation of litigation and/or protected pursuant to the "joint defense doctrine,
        recognized in TEX. R. EVID. 503(b)(l) and such cases as Ryals v. Canales, 767
        S.W.2d 226,228 (Tex. App.-Daflas 1989, orig. proceeding). Subject to these
        objections, no such documents exist.
 REQUEST FOR PRODUCTION NO. 25: Produce any communications dating back to
 the date of your inceP.tion, including letters, tape recordings, or emails, that you have
 had with Beverly Miller concerning Albert.
        RESPONSE: Intervenor objects to any such documents created after the
        antici.Pation of litigation ana/or protected pursuant to the "joint defense
        doctrme" recognized in TEX. R. EVID. 503(b)(l) and such cases as Ryals v.
        Canales, 767 S.W.2d 226, 228 (Tex. App.-Dallas 1989, orig. proceeding).
        Subject to these objections, no such documents exist.
 REQUEST FOR PRODUCTION NO. 26: Produce all documents and
 communications dating back to the date of your inception, including letters, tape
 recordings, or emails, that you have had with Rickey Brantley concerning the
 Estate's distributions to Herrs and the calculations of the Heirs' attorneys' fees.
        RESPONSE: No such documents exist.
 JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GffiBS                      Page 6




469
 REQUEST FOR PRODUCTION NO. 27: Produce all documents and
 communications dating back to the date of your inception, including letters, tape
 recordin~s, or emails, that you have had with Scott Pelley concerning the Estate's
 distributiOns to Heirs and the calculations of the Heirs' attorneys' fees.

         RESPONSE: No such documents exist.

 REQUEST FOR PRODUCTION NO. 28: Produce any communication dating back
 to the date of your inception, including letters, tape recordings, or emails, that you
 have had with any representative of JW Operating Company concerning you
 yourself, Albert, GWB Trust, Pentex Trust, Pentex, or the Estate as it relates to
 distributions to GWB Trust.

         RESPONSE: No such documents exist.
 REQUEST FOR PRODUCTION NO. 29: Produce any communication dating back
 to the date of your inception, including letters, ta~e recordings, or emails, that you
 have had with any representative of Trio Consultmg and Management, LLC,
 concerning you yourself, Albert, GWB Trust, Pentex Trust, GBU Trust, or the
 Estate as it relates to distributions to GWB Trust.

         RESPONSE: No such documents exist.

 REQUEST FOR PRODUCTION NO. 30: Produce any communication dating back
 to the date of your inception, including letters, tape recordings, or emails, that you
 have had with any representative of Devon Energy concerning you yourself, Albert,
 GWB Trust, Pentex Trust, Pentex, or the Estate as it relates to distributions to GWB
 Trust.

         RESPONSE: No such documents exist.

 REQUEST FOR PRODUCTION NO. 31: Produce all documentation dating back to
 the date of your inception, which you have concerning Renhaw, Inc., including the
 transfer of rights of the CSL to Pentex, letters, emails, tape recordings, and any
 other records involving Renhaw, Inc.
         RESPONSE: No such documents exist.
 REQUEST FOR PRODUCTION NO. 32: Produce all documentation dating back to
 May 1, 2008, which is in your possession relating to the Estate's calculations of the
 Heirs' attorneys' fees and the method by which the attorneys' fees were distributed.
         RESPONSE: No such documents exist except as may be indetified in
         response to Request for Production number 2.
 REQUEST FOR PRODUCTION NO. 32: Produce all documentation dating back to
 May 1, 2008, which is in your possession relating to GWB Trust.

  JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS                  Page7




470
         RESPONSE: No such documents exist except as may be indetified in
         response to Request for Production number 2.

  REQUEST FOR PRODUCTION NO. 33: Produce all documentation dating back to
  May 1, 2008, which is in your possession relating to Pentex.

         RESPONSE: Objection. This request is overly broad. Subject to this
         objection, see the documents produced in response to Request for Production
         2.
  REQUEST FOR PRODUCTION NO. 34: Produce all documentation dating back to
  September 1, 2005, which is in your possession relating to the CSL.
         RESPONSE: The Intervenor has a copy of the CSL.
  REQUEST FOR PRODUCTION NO. 35: Produce all documentation dating back to
  May I, 2008, which is in your possession relating to the FSA.

         RESPONSE: The Intervenor has a copy of what is believed to be the FSA.

  REQUEST FOR PRODUCTION NO. 36: Produce all documentation dating back to
  May I, 2008, which is in your possession relating to Pentex Foundation.

         RESPONSE: Objection. This request is overly broad. Subject to this
         objection, see the documents produced in response to Request for Production
         2.
  REQUEST FOR PRODUCTION NO. 37: Produce all contracts with the gas
  companies with whom you do business and in whose contracts with you in which
  Ken allegedly tortuously interfered, as claimed in your Petition in Intervention.

        RESPONSE: Intervenor is searching for any responsive documents and will
  supplement if they become available.

  REQUEST FOR PRODUCTION NO. 38: Produce all evidence, including
  calculations, records, accountings, books, and other documents upon which you
  base your claim that the Estate deducted contingent attorneys' fees owing by
  Defendants prior to making distributions to GWB Trust.
         RESPONSE: Objection. This request is overly broad and fails to direct
         Plaintiff to any class or type of documents. See, Loftin v. Martin, 766 S.W.2d
         I45 (I989). Additionally, this invades the work product exemption and
         attorney cfient privilege, as the determination of evidence is one made by
         counsel in consultation with the client.

  REQUEST FOR PRODUCTION NO. 39: Produce all evidence, including
  calculations, records, accountin~s, books, and other documents upon which you base
  your claim that Candy and Ken mdividually are responsible for tlie distributiOns to
  JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS                 Page 8




471
 Beneficiaries by GWB Trust.

        RESPONSE: Objection. This request is overly broad and fails to direct
        Plaintiff to any class or type of documents. See, Loftin v. Martin, 766 S.W.2d
        145 (1989). Additionally, this invades the work product exemption and
        attorney cfient privilege, as the determination of evidence is one made by
        counsel in consultation with the client.

 REQUEST FOR PRODUCTION NO. 40: Produce all documents that you have in
 your possession related to the Estate's distributions to GWB Trust as related to
 royaltiesirom oifandgrufcothpanies.                                      - - - -

        RESPONSE: No such documents exist.

 REQUEST FOR PRODUCTION NO. 41: Produce any communication dating back
 to the date of your inception, including letters, tape recordings, or emails, that you
 have had with Howard Kirk concerning GBU Trust.

        RESPONSE: Intervenor objects to any such documents created after the
        anticipation of litigation ana/or protected pursuant to the "joint defense
        doctrme" recognized in TEX. R. EVID. 503(b)(l) and such cases as Ryals v.
        Canales, 767 S.W.2d 226,228 (Tex. App.-Dallas 1989, orig. proceeding).
        Subject to this objection, no such documents exist.

 REQUEST FOR PRODUCTION NO. 42: Produce any communication dating back
 to the date of your inception, including letters, tape recordings, or emails, that you
 have had with Howard Kirk concerning Pentex.
        RESPONSE: Intervenor objects to any such documents created after the
        anticipation of litigation anO/or protected pursuant to the "joint defense
        doctnne" recognized in TEX. R. EVID. 503(b)(l) and such cases as Ryals v.
        Canales, 767 S.W.2d 226, 228 (Tex. App.-Dallas 1989, orig. proceeding).
        Subject to this objection, no such documents exist.

 REQUEST FOR PRODUCTION NO. 43: Produce any communication dating back
 to the date of your inception, including letters, tape recordings, or emails, that you
 have had with Howard Kirk concerning this lawsuit.
        RESPONSE: Intervenor objects to any such documents created after the
        anticipation of litigation and/or protected pursuant to the "joint defense
        doctnne" recognized in TEX. R. EVID. 503{b)(l) and such cases as Ryals v.
        Canales, 767 S.W.2d 226,228 (Tex. App.-Dallas 1989, orig. proceeding).
 REQUEST FOR PRODUCTION NO. 44: Produce any communication dating back
 to the date of your inception, including letters, tape recordings, or emails, that you
 have had with Beverly Miller or Sharron Cox concerning this lawsuit.

        RESPONSE: Intervenor objects to any such documents created after the
 JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS                   Page9




472
        anticipation of litigation and/or protected pursuant to the "joint defense
        doctrme" recognized in TEX. R.EVID. 503(b)(l) and such cases as Ryals v.
        Canales, 767 S.W.2d 226,228 (Tex. App.-Dallas 1989, orig. proceeding).
        Subject to this objection, no such documents exist.
 REQUEST FOR PRODUCTION NO. 45: Produce any communication dating back
 to the date of your inception, including letters, tape recordings, or emails, that you
 have had with Howard Kirk concerning Pentex Trust.
        RESPONSE: Intervenor objects to any such documents created after the
        anticipation of litigation and/or protected pursuanttcrthe ']oint defense doctrine"
        recognized in TEX. R. EVID. 503(b)(l) and such cases as Ryals v. Canales, 767
        S.W.2d 226,228 (Tex. App.-Daflas 1989, orig. proceeding). Subject to this
        objection, no such documents exist.
 REQUEST FOR PRODUCTION NO. 46: Produce any communication dating back to
 the date of your inception, including letters, tape recordings, or emails, that you have
 had with Howard Kirk concerning the Estate as it concerns its distributions to GWB
 Trust or to the Heirs.
        RESPONSE: Intervenor objects to any such documents created after the
        anticipation of litigation and/or protected pursuant to the ')oint defense doctrine"
        recognized in TEX. R. EVID. 503(b)(1) and such cases as Ryals v. Canales, 767
        S.W.2d 226, 228 (Tex. App.-Daflas 1989, orig. proceeding). Subject to this
        objection, no such documents exist.
 REQUEST FOR PRODUCTION NO. 47: Produce any communication dating back to
 the date of your inception, including letters, tape recordings, or emails, that you have
 had with Beverly Miller or Sharron Cox concerning Pentex Trust.
        RESPONSE: Intervenor objects to any such documents created after the
        anticipation of litigation and/or protected pursuant to the ')oint defense doctrine"
        recognized in TEX. R EVID. 503(b)(1) and such cases as Ryals v. Canales, 767
        S.W.2d 226,228 (Tex. App.-Daflas 1989, orig. proceeding). Subject to this
        objection, no such documents exist.
 REQUEST FOR PRODUCTION NO. 48: Produce any communication dating back to
 the date of your inception, including letters, tape recordings, or emails, that you have
 had with Danny Unger concerning Pentex.
        RESPONSE: Intervenor objects to any such documents created after the
        anticipation oflitigation and/or protected pursuant to the "joint defense doctrine"
        recognized in TEX. R EVID. 503(b)(l) and such cases as Ryals v. Canales, 767
        S. W.2d 226, 228 (Tex. App.-Daflas 1989, orig. proceeding). Subject to this
        objection, no such documents exist except as may be indetined in response to
        Request for Production number 2.
 REQUEST FOR PRODUCTION NO. 49: Produce any communication dating back to
 JOSHUA UNGER, TRUSTEE'S RESPONSE TO DlSCOVERY FROM KENNETH GIBBS                         Page 10



                                                                                      Exhibit

473                                                                        Page   I   0     of
      the date of your inception, including letters, tape recordings, or emails, that you have
      had with Beverly Miller or Sharron Cox concerning distributions from the Estate.
             RESPONSE: Intervenor objects to any such documents created after the
             anticipation of litigation and/or protected pursuant to the ')oint defense doctrine"
             recognized in TEX. R EVID. 503(b)(l) and such cases as Ryals v. Canales, 767
             S.W.2d 226,228 (Tex. App.-Dafias 1989, orig. proceedfug). Subject to this
             objection, no such documents exist.
    REQUEST FOR PRODUCTION NO. 50: Produce any communication dating back to
  · the date of your inception; including .letters, tape recordings, or emails, that you have
    had with Danny Unger concerning distributions from the Estate.
             RESPONSE: Intervenor objects to any such documents created after the
             anticipation oflitigation and/or protected pursuant to the ')oint defense doctrine"
             recognized in TEX. R EVID. 503(b)(1) and such cases as Ryals v. Canales, 767
             S.W.2d 226, 228 (Tex. App.-Daflas 1989, orig. proceeding). Subject to this
             objection, no such documents exist.
      REQUEST FOR PRODUCTION NO. 51: Produce any communication dating back to
      the date of your inception, including letters, tape recordings, or emails, that you have
      had with Howard Kirk concerning distributions from the Estate.
             RESPONSE: Intervenor objects to any such docwnents created after the
             anticipation of litigation and/or protected pursuant to the "joint defense doctrine"
             recognized in TEX. R EVID. 503(b)(1) and such cases as Ryals v. Canales, 767
             S.W.2d 226,228 (Tex. App.-Dallas 1989, orig. proceeding). Subject to this
             objection, no such documents exist.
      REQUEST FOR PRODUCTION NO. 52: Produce any communication dating back to
      May 1, 2008, imluding letters, tape recordings, or emails, that you have had with Darmy
      Unger concerning attorney fee distributions from the Estate.
             RESPONSE: Intervenor objects to any such documents created after the
             anticipation of litigation and/or protected pursuant to the ']oint defense doctrine"
             recognized in TEx. R. EVID. 503(b)(1) and such cases as Ryals v. Canales, 767
             S.W.2d 226,228 (Tex. App.-Daflas 1989, orig. proceeding). Subject to this
             objection, no such documents exist.
      REQUEST FOR PRODUCTION NO. 53: Produce any communication datine; back to
      May 1, 2008, including letters, tape recordings, or emails, that you have had With Albert
      concerning attorney fee distributions from the Estate.
             RESPONSE: Intervenor objects to any such documents created after the
             anticipation of litigation and/or protected pursuant to the ')oint defense doctrine"
             recognized in TEx. R EVID. 503(b)(1) and such cases as Ryals v. Canales, 767
             S.W.2d 226,228 (Tex. App.-Daflas 1989, orig. proceeding). Subject to this
             objection, no such documents exist.
      JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GffiBS                     Page ll




474
      REQUEST FOR PRODUCTION NO. 54: Produce an¥. communication dating back to
      May 1, 2008, including letters, "tape recordings, or ematls, that you have had with
      Howard Kirk concerning attorney fee distributions from the Estate.
             RESPONSE: Intervenor objects to any such documents created after the
             anticipation of litigation and/or protected pursuant to the "joint defense doctrine"
             recognized in TEX. R. EVID. 503(b)(1) and such cases as Ryals v. Canales, 767
             S.W.2d 226, 228 (Tex. App.-Daflas 1989, orig. proceeding). Subject to this
             objection, no such docwnents exist.
      REQUEST FOR PRODUCTION NO. 55: Produce anr. communication dating back to
      May 1, 2008, including letters, tape recordings, or ematls, that you have had with Ken
      concerning attorney fee distributions from the Estate.
             RESPONSE: No such documents exist.
      REQUEST FOR PRODUCTION NO. 56: Produce any communication dating back to
      May 1, 2008, including letters, tape recordings, or emails, that you have had with Candy
      concerning attorney fee distributions from the Estate.
             RESPONSE: No such documents exist.
      REQUEST FOR PRODUCTION NO. 57: Produce anr. communication dating back to
      May 1, 2008, including letters, tape recordings, or emruls, that you have had with
      Beverly Miller or Sharron Cox concerning attorney fee distributions from the Estate.
             RESPONSE: Intervenor objects to any such documents created after the                ·
             anticipation oflitigation and/or protected pursuant to the "joint defense doctrine"
             recognized in TEX. R. Evrn. 503(b)( 1) and such cases as Ryals v. Canales, 767
             S.W.2d 226, 228 (Tex. App.-Daflas 1989, orig. proceeding). Subject to this
             objection, no such documents exist.
      REQUEST FOR PRODUCTION NO. 58: Produce any communication dating back to
      May 1, 2008, including letters, tape recordings, or emails, that you have had with
      Beverly Miller or Sharron Cox concerning the distribution of GWB Trust assets.
             RESPONSE: Intervenor objects to any such documents created after the
             anticipation of litigation and/or protected pursuant to the '~oint defense doctrine"
             recognized in TEx. R. EVID. 503(b)(1) and such cases as Ryals v. Canales, 767
             S.W.2d 226,228 (Tex. App.-Dafias 1989, orig. proceeding). Subject to this
             objection, no such documents exist.
      REQUEST FOR PRODUCTION NO. 59: Produce any communication dating back to
      May 1, 2008, in~luding letters, tape recordings, or emails, that Pentex has had with Beverly
      Miller or Sharron Cox concerning the distribution of GWB Trust assets.
             RESPONSE: Intervenor objects to any such documents created after the
             anticipation of litigation and/or protected pursuant to the ')oint defense doctrine"
      JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GffiBS                      Page 12




475
             recognized in TEX. R. EVID. 503(b)(1) and such cases as Ryals v. Canales, 767
             S.W.2d 226,228 (Tex. App.-Daflas 1989, orig. proceeding). Subject to this
             objection, no such documents exist.
      REQUEST FOR PRODUCTION NO. 60: Produce an:r. communication dating back to
      May 1, 2008, including letters, tape recordings, or emruls, that you have had with the
      Estate or its representatives concerning the FSA.
             RESPONSE: No such documents exist.
  REQUEST FOR PRODUCTION NO. 61: Produce any communication dating back to
  May 1, 2008, including letters, tape recordings, or emails, that you have had with
  the Estate or its representatives concerning the CSL.
             RESPONSE: No such documents exist.
  REQUEST FOR PRODUCTION NO. 62: Produce any communication dating back to
  May 1, 2008, including letters, tape recordings, or emails, relevant to transfers of
  GWB Trust interest in which Albert engaged, either on his own behalf, or on behalf of
  Pentex; Pentex Trust; Renhaw, Inc.; GBU Trust; or any other entity in which he was an
  interested party.
             RESPONSE: Intervenor objects to any such documents created after the
             anticipation of litigation and/or protected pursuant to the ')oint defense doctrine"
             recognized in TEX. R. EviD. 503(b)(l) and such cases as Ryals v. Canales, 767
             S.W.2d 226, 228 (Tex. App.-Daflas 1989, orig.J?roceeding). Subject to this
             objection, see the response to Request for Production number 2.
  REQUEST FOR PRODUCTION NO. 63: Produce all documentation in your
  possession dating back to May 1, 2008, regarding the FSA.
             RESPONSE: See the response to request for production 35.
  REQUEST FOR PRODUCTION NO. 64: Produce a copy of any payments you
  made to the lnttmial Revenue Service or Department of Treasury.
             RESPONSE: Intervenor objects to this request as outside the scope of legitimate
             discovery, invasive of privacy, and overly broad.
  REQUEST FOR PRODUCTION NO. 65: Produce all documents in your possession
  dating back to May 1, 2008, regarding the CSL.
             RESPONSE: See the response to Request for Production number 34.
  REQUEST FOR PRODUCTION NO. 66: Produce all communication and documents
  you have had with Ken regarding distribution of Estate funds for attorney fees on behalf
  of Ken, Candy, or Howard Kirk.

      JOSHUA UNGER. TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS                      Page 13




476
             RESPONSE: No such documents exist.
  REQUEST FOR PRODUCTION NO. 67: Produce all communication and documents
  you have had with Rickey Brantley or Scott Pelley regarding distribution ofEstate funds
  for attorney fees on behalf of Ken, Candy, or Howard Kirk.
             RESPONSE: No such documents exist.
  REQUEST FOR PRODUCTION NO. 68: Produce all communication and documents
  you have had with Beverly Miller or her attorney Sharron Cox with regards to this
  lawsuit or the Tarrant case.
             RESPONSE: Intervenor objects to any such documents created after the
             anticipation oflitigation and/or protected pursuant to the ')oint defense doctrine"
             recognized in TEX. R. EVID. 503{b)(l) and such cases as Ryals v. Canales, 767
             S.W.2d 226, 228 (Tex. App.-Daflas 1989, orig. proceeding). Subject to this
             objection, no such docwnents exist.
  REQUEST FOR PRODUCTION NO. 69: Produce all documentation concerning
  transfers and distributions to/from GBU Trust assets dating from its inception to the
  present, including assignments of interest and distributions to all beneficiaries and other
  parties of monies, real property, and personal properties.
             RESPONSE: Intervenor objects as this is outside the scope oflegitimate
             discovery, and submitted solely for the purpose of invasion of privacy and
             harassment.
  REQUEST FOR PRODUCTION NO. 70: Produce an inventory of all assets held by
  GBU Trust, dating back to its inception.
             RESPONSE: Intervenor objects as this is outside the scope of le~itimate
             discovery, and submitted solely for the purpose of invasion ofpnvacy and
             harassment.
  REQUEST FOR PRODUCTION NO. 71: Produce documentation concerning
  membership interest in GBU Trust.
             RESPONSE: Intervenor objects as this is outside the scope of legitimate
             discovery, and submitted solely for the purpose of invasion of privacy and
             harassment.
  REQUEST FOR PRODUCTION NO. 72: Produce documentation concerning any
  and all monies you have received from the oil and gas companies.
             RESPONSE: Intervenor objects as this is outside the scope oflegitimate
             discovery, and submitted solely for the purpose of invasion of privacy and
             harassment.

      JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS                     Page 14




477                                                                             Page
      REQUEST FOR PRODUCTION NO. 73: Produce documentation or
      communication in which Albert transferred any and all interest in the CSL to
      Renshaw, Pentex, Pentex Trust, and GBU Trust.

             RESPONSE: Except as was produced in response to Request for Production
             number 2, no such documents exist within the possession of Intervenor.
      REQUEST FOR PRODUCTION NO. 74: Produce documentation or
      communication in which Albert transferred any and all interest in the FSA to
      Renshaw, Pentex, Pentex Trust, and GBU Trust.

             RESPONSE: Except as was produced in response to Request for Production
             number 2, no such documents exist within tlie possession of Intervenor.

      REQUEST FOR PRODUCTION NO. 75: Produce documentation or
      communication in which Renshaw transferred any and all interest in the CSL to
      Albert, Pentex, Pentex Trust, and GBU Trust.
             RESPONSE: Except as was produced in response to Request for Production
             number 2, no such documents exist within the possession of Intervenor.
      REQUEST FOR PRODUCTION NO. 76: Produce documentation or
      communication in which Renshaw transferred any and all interest in the FSA to
      Albert, Pentex, Pentex Trust, and GBU Trust.

             RESPONSE: Except as was produced in response to Request for Production
             number 2, no such documents exist within the possession of Intervenor.
      REQUEST FOR PRODUCTION NO. 77: Produce documentation or
      communication in which Pentex transferred any and all interest in the CSL to
      Albert, Renshaw, Pentex Trust, and GBU Trust.

             RESPONSE: Except as was produced in response to Request for Production
             number 2, no such documents exist within the possession of Intervenor.
      REQUEST FOR PRODUCTION NO. 78: Produce documentation or
      communication in which Pentex transferred any and all interest in the FSA to
      Albert, Renshaw, Pentex Trust, and GBU Trust.
             RESPONSE: Except as was produced in response to Request for Production
             number 2, no such documents exist within the possession of Intervenor.
      REQUEST FOR PRODUCTION NO. 79: Produce documentation or
      communication in which GBU Trust transferred any and all interest in the CSL to
      anyone or any entity.

             RESPONSE:              No such documents exist.

      JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GffiBS               Page IS




478                                                                       Page
      REQUEST FOR PRODUCTION NO. 80: Produce documentation or
      communication in which GBU Trust transferred any and all interest in the FSA to
      anyone or any entity.
             RESPONSE:              No such documents exist.
      INTERROGATORY NO. 1: Fully detail and explain your claim that you are the
      "real party in interest in this suit," rather than Pentex, the Original Plaintiff,
      including how you arrived at the status of being the "real party in interest in this
      suit" and explam in detail your reasoning for not being the Original Plaintiff in this
      suit, while Pentex, whom you deny is the "real party in interest," initiated this suit.
             ANSWER: Intervenor objects to this interrogatory as outside the scope of
             permissible discovery and overly broad. Interrogatories may be used to
             ascertain basic legal and factual claims and defenses, but may not be used to
             force a party to marshal evidence." See, Rule 197 of the Texas Rules of Civil
             Procedure, at comment 1. Subject to this objection, Intervenor answers as
             follows:
             GBU Trust accepted the contribution from Pentex Foundation as one of the
             settlors to GBU Trust. As such, GBU Trust has full ownership at this point of
             time of the interests Pentex Foundation did hold in the "Contract for Sale of
             Land, Mineral Rights and Royalties, and all other Assets or Monies Received
             from the Estate otBert Hughes Gibbs, Kathryn G. Gibbs, and/or the Mary L.
             Houseworth Trust(s)", referred to herein throughout as "Contract". The fact .
             that GBU Trust should have been a co-plaintiflin this suit from the beginning
             was an oversight by the original attorney, John Skotnik, which was later
             corrected.
      INTERROGATORY NO.2: Explain your rationale for entering a lawsuit as
      Intervenor, when you believe that you are not bound by the agreement previously
      established by the parties of GWB Trust, the CSL, and the FSA, agreements whtch
      form the basis for your intervention, including your relationship to each of the
      parties you deem to be interested J?arties to the matter at hand, mcluding explaining
      why you believe yourself to have mterest in the Estate, and why you believe that
      attorneys' fees belonging to Defendants were being deducted from your alleged
      share of the Estate.
             ANSWER: Intervenor objects to this interrogatory as outside the scope of
             permissible discovery and overly broad. Interrogatories may be used to
             ascertain basic legal and factual claims and defenses, but may not be used to
             force a party to marshal evidence." See, Rule 197 ofthe Texas Rules of Civil
             Procedure, at comment 1. Intervenor further objects that this interrogatory
             states incorrect and false premises, and as such 1s incapable of being
             answered. The trustee of the GBU Trust has never stated that it was not
             bound by the Contract or the FSA.
      INTERROGATORY NO.3: Provide calculations upon which you base your claim
      JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS                    Page 16




479
      that you are owed in excess of$1 million because of payments due you which were
      reduced by the amount of attorneys' fees, when GWB Trust was not aware of your
      alleged existence until November or December 2013 and had never incurred such
      debt to you.

             ANSWER: The Barcroft share of the Contract was 30% of the shares of the
             inheritance received by Ken, candy and Howard. Ken, Candy and Howard
             collectively received 75% of the entire estate; therefore, Pentex Foundation
             owned 22.5% of the entire estate (75% X 30% = 22.5%). 2.46% of the
             Pentex share was taken out at the estate level to pay John Skotnik the fees
             Barcroft owed him, leaving 20.04% being owned by Pentex Foundation. For
             the first 5 years of distribution, Pentex Foundation has only been receiving
             10.02%. That means that Pentex Foundation should have received double
             what it was paid by GWB Trust. That is over a million dollars. GBU Trust
             now owns the rights to everything that Pentex Foundation previously owned,
             including the payment of underpayment of distributions. The only attorney
             fees that were supposed to reduce the Barcroft share of the Contract are those
             paid to John Skotnik. See also the computation of damages submitted as
             Plaintiff/Intervenor 00255-256.

      INTERROGATORY NO. 4: Explain why you claim to be entitled to 30% of all
      proceeds arising from any lawsmt involving Defendants, under the terms of the
      Contract, when you deny being held to the terms of the Contract; and explain why
      you request the Court to declare the Contract valid and enforceable if in fact, you
      cannot be bound by the tenns of the Contract; and explain your reasoning for filing
      the Plaintiffs and Intervener's Motion for Partial Summary Judgment in conjunction
      with Pentex, revealing a lack of clarity as to which party actually holds interest in
      GWB Trust.

      ANSWER: Intervenor objects to this interrogatory as outside the scope of
      permissible discovery and overly broad. Interrogatories may be used to ascertain
      basic legal and factual claims and defenses, but may not be used to force a party to
      marshal evidence." See, Rule 197 of the Texas Rules of Civil Procedure, at
      comment 1. Intervenor further objects that this interrogatory states incorrect,
      argumentative, and false premises, and as such is incapable of being answered. The
      trustee of the GBU Trust has never stated that it was not bound by the Contract or
      the FSA.
      INTERROGATORY NO.5: Explain your statement that you and Defendants have
      a long history, when Candy and Ken deny knowing of your existence until late
      2013; and
             ANSWER: (Assuming that there should be a period after 2013), the "long
             history" is with the predecessors, Albert Barcroft and Pentex Foundation; the
             position that Intervenor now holds.

      INTERROGATORY NO.6: Explain the reasoning behind aligning with Pentex in
      its claim against Defendants while you yourself insist that you are entitled to the
      JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS                 Page 17



                                                                                   EXh I'b't
                                                                                          I
                                                                                                 A_. 'f~;iC
                                                                                               /,A~-~~
                                                                                               ,/t:::<;>
480                                                                      Page_}lof             (~
      exact same assets that Pentex claims from Defendants.
             ANSWER: GBU Trust owns the Pentex Foundation share. Pentex
             Foundation is simyly the settlor of that share, but it does have an interest in
             the proper collection of that share. The amount is owed only to GBU Trust.
      REQUEST FOR ADMISSION NO. 1: Admit or deny that Howard Kirk is a party
      holdmg interest in you.
             RESPONSE: The Intervenor objects to this request as outside the scope of
             legitimate discovery. Subject to this objection: Denied.
      REQUEST FOR AD:rvfiSSION NO. 2: Admit or Deny that Howard Kirk has paid
      money to Scott Smith or GBU Trust on your behalf in this lawsuit.
             RESPONSE: The Intervenor objects to this request as outside the scope of
             legitimate discovery. Subject to this objection: Denied.
      REQUEST FOR AD:rvfiSSION NO.3: Admit or Deny that you were formed in part
      because discord developed among the members of GWB Trust in 2013.
             RESPONSE: The Intervenor objects to this request as outside the scope of
             legitimate discovery. Subject to this objection: Admit.
      REQUEST FOR ADMISSION NO. 4: Admit or Deny that you distribute benefits to
      Albert.
             RESPONSE: The Intervenor objects to this request as outside the scope of
             legitimate discovery. Subject to this objection: Denied.
      REQUEST FOR ADMISSION NO. 5: Admit or Deny that you distribute benefits to
      Howard Kirk or his immediate family members.
             RESPONSE: The Intervenor objects to this request as outside the scope of
             legitimate discovery. Subject to this objection: Denied.
      REQUEST FOR ADMISSION NO. 6: Admit or Deny that you distribute benefits to
      Danny Unger.
             RESPONSE: The Intervenor objects to this request as outside the scope of
             legitimate discovery. Subject to this objection: Denied.
      REQUEST FOR ADMISSION NO. 7: Admit or Deny that at the time of your
      formation, there was at least one (1) Federal Tax Lien filed against Pentex and that a
      transfer of GWB Trust interest from Pentex to you might ultimately allow the flow
      of GWB Trust funds to Albert to continue without substantial interruption.
             RESPONSE: The Intervenor objects to this request as outside the scope of
      JOSHUA UNGilR, TRUSTEil'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS                     Page 18


                                                                                        Exhibit
481                                                                         Page    )   7J   of
             legitimate discovery, and multifarious. Subject to this objection: Denied.

      REQUEST FOR ADMISSION NO. 8: Admit or Deny that on or around March 17,
      2014, Danny Unger called Julie Walker at JW Operating Company and professed to
      Julie Walker that Danny Unger was the Trustee of GBU Trust.
             RESPONSE: Deny that Danny Unger was ever trustee. The Intervenor
             cannot admit or deny the balance as beyond GBU Trust knowledge.
      REQUEST FOR ADMISSION NO. 9: Admit or Deny that you are an alter ego for
      Albert.
             RESPONSE: The Intervenor objects to this request as outside the scope of
             legitimate discovery. Subject to this objection: Denied.

      REQUEST FOR ADMISSION NO. 10: Admit or Deny that Albert claimed to be,
      and served, as your Legal Representative in November and December 2013.
             RESPONSE: Deny that Albert was ever our representative, cannot admit or
             deny the balance as beyond GBU Trust know ledge.
      REQUEST FOR ADMISSION NO. 11: Admit or Deny that your suit against
      Howard Kirk, Heir to the Estate, is a sham, designed to legitimize allegations
      against Ken individually, as an Heir to the Estate.
             RESPONSE: Intervenor objects to this request as argumentative. Subject to
             this objection: Denied.

      REQUEST FOR ADMISSION NO. 12: Admit or Deny that GWB Trust is a
      legitimate entity and has distributed to you assets original to the Estate.
             RESPONSE: Admit that GWB Trust transferred mineral rights to GBU Trust
             that were owned by the estate at one time in the distant past, cannot admit or
             deny as to the legitimacy ofGWB Trust.
      REQUEST FOR ADMISSION NO. 13: Admit or Deny that you were entitled to
      demand 57.19% ofGWB Trust assets.
             RESPONSE: Deny that GBU trust demanded 57.19% of the GWB Trust
             assets.
      REQUEST FOR ADMISSION NO. 14: Admit or Deny that you are a party to the
      FSA.
             RESPONSE: Admit that GBU Trust holds the interests of a party to the
             estate.
      REQUEST FOR ADMISSION NO. 15: Admit or Deny that you intervened in this
      JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GffiBS                   Page 19




482
      suit as the "real party in interest" because Pentex's suit against Defendants had no
      legitimate basis m fact or law.
             RESPONSE: Denied.
      REQUEST FOR ADMISSION NO. 16: Admit or Deny that you were established
      after Candy and Ken demanded an accounting ofGWB Trust.
             RESPONSE: Admit to the time frame, deny that there was any relevance to
             the coincidence.
      REQUEST FOR ADMISSION NO. 17: Admit or Deny that, according to the GWB
      Trust document, you hold no interest in GWB Trust.
             RESPONSE: The Intervenor has made reasonable inquiry and the
             information known to him or easily obtainable to him is msufficient with
             which to either admit or deny this request.              ·
      REQUEST FOR ADMISSION NO. 18: Admit or Deny that Albert drafted the
      GBU Trust agreement.
             RESPONSE: The Intervenor objects to this request as outside the scope of
             legitimate discovery. Subject to this objection: Denied.
      REQUEST FOR ADMISSION NO. 19: Admit or Deny that the GWB Trust owns
      35.04% ofthe assets that are still left in the estate, including real estate.
             RESPONSE: Objection. This is a purely legal question which needs to be
             answered by a court. Subject to this objection, the Intervenor has made
             reasonable mquiry and the information known to him or easily obtainable to
             him is insufficient with which to either admit or deny this request.
      REQUEST FOR ADMISSION NO. 20: Admit or Deny that you have received
      assets in excess of the 57.19% interest in GWB Trust which Beverly Miller
      assigned to you.
             RESPONSE: Denied.
      REQUEST FOR ADMISSION NO. 21: Admit or Deny that the Estate was
      responsible for calculating Defendants' attorneys' fees prior to distributions of
      Estate assets.
             RESPONSE: the Intervenor has made reasonable inquiry and the
             information known to him or easily obtainable to him is insufficient with
             which to either admit or deny this request.
      REQUEST FOR ADMISSION NO. 22: Admit or Deny that because Candy and
      Ken individually were, and are, not responsible for the distributions from the Estate
      JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GIDBS                  P&ge20




483
      to GWB Trust, Candy and Ken individually are not culpable parties in this case.
             RESPONSE: Objection. This request assumes legal conclusions which have
             not been established and is multifarious.
      REQUEST FOR ADMISSION NO. 23: Admit or Deny that your Beneficiaries
      profit, or have profited, from GWB Trust.
             RESPONSE: The Intervenor objects to this request as outside the scope of
             legitimate discovery. Subject to this objection: Denied.
      REQUEST FOR ADMISSION NO. 24: Admit or Deny that you have a right to
      specific perfonnance of the CSL and FSA, even though you allege that you are not
      bound by the CSL.
             RESPONSE: The Intervenor objects to this request as multifarious and
             asserts facts as true which are not so. The GBU Trust ever alleged that it was
             not bound by the CSL.
      REQUEST FOR ADMISSION NO. 24: Admit or Deny that the in or around
      November 2013, you, or Albert acting on your or Pentex's behalf, demanded the
      GWB Trust Trustee, Beverly Miller, to transfer 57.19% of the existing GVv'B Trust
      assets into a newly created trust, the GBU Trust.
             RESPONSE: Objection to this request as multifarious. Admit that Pentex
             Foundation demanded a transfer of its contribution to GWB Trust which
             equaled 57.19% of the assets ofGWB Trust.
      REQUEST FOR ADMISSION NO. 25: Admit or Deny that you, or Albert acting
      on your behalf, infonned Beverly Miller that, if she did not transfer 57.19% of
      GWB Trust assets into the GBU Trust, she would be held personally liable for any
      losses.
             RESPONSE: Objection to this request as multifarious. Deny that GBU Trust
             infonned Beverly Miller of anything, cannot admit or deny what Albert did
             or did not do.
      REQUEST FOR ADMISSION NO. 26: Admit or Deny that upon your instructions, or
      upon instructions from Albert acting on your behalf, Beverly Miller transferred 57.19%
      interest from GWB Trust to GBU Trust.
             RESPONSE: Objection to this request as multifarious. Deny GBU Trust gave
             any instructions, deny Albert acted on behalf of GBU trust
      REQUEST FOR ADMISSION NO. 27: Admit or Deny that you breached the FSA.
             RESPONSE: Denied.

      JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS                    Page 21


                                                                                      Exhibit       A-~-Q'f,
                                                                                                        lrJt,;,"<>./'
                                                                                                                        . ,,
                                                                                                     /~        f


484                                                                         Page   ?-.)      of     '
      REQUEST FOR ADMISSION NO. 28:. Admit or Deny that rour lawsuit against
      Candy and Ken was filed in part as revenge because of therr inquiries into the
      administration of GWB Trust.
             RESPONSE: Intervenor objects to this interrogatory as argumentative. Subject
             to this objection: Denied.
      REQUEST FOR ADMISSION NO. 29: Admit or Deny that any assignee of Albert's
      interest in GWB Trust would be entitled to only the amount of interest which he
      himself held at the time of the assignment.

             RESPONSE: Objection. This is a purely legal question which needs to be
             answered by a court.
      REQUEST FOR ADMISSION NO. 30: Admit or Deny that the Estate is
      responsible for the flow of cash to GWB Trust, which m turn flows to the
      Beneficiaries.
             RESPONSE: Denied.
      REQUEST FOR ADMISSION NO. 31: Admit or Deny_that Candy does not have
      the authority to control the Estate's distributions to the Heirs.




             RESPONSE: Intervenor has made reasonable ing_uiry and the information
             known to him or easily obtainable to him is insufficient with which to
             either admit or deny this request.
      REQUEST FOR ADMISSION NO. 33: Admit or Deny that Howard Kirk
      cooperated with your intervention in this suit.
             ~SPpNSE: Opjection. This request is ambiguous. Subject to this
             obJection: Derued.
      REQUEST FOR ADMISSION NO. 34: Admit or Deny that that y:ou consulted with
      Danny Unger concerning_the Estate's distributions to tlie Heirs ana the Heirs'
      obligations toward legal-tees and that _you obtained information from Danny Unger
      which thus should be confidential, as Danny Unger performed accounting services to
      GWB Trust.
             RESPONSE: The Intervenor objects to this request as outside the scope of
             legitimate discovery. Subject to this objection: Denied.
      REQUEST FOR ADMISSION N0.35: Admit or Deny that Albert, Beverly Miller,
      Howard Kirk, Danny Ung_e!:t, and yourself worked together to transfer 57.1 Y% of
      GWB Trust assets to GB (J 1 rust.


      JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GffiBS             Page 22




485                                                                       Page
             ~SPPNSE:     Opjection. This request is ambiguous. Subject to this
             obJectiOn: Demed.
      REQUEST FOR ADMISSION NO. 36: Admit or Deny that you worked together
      witli Pat111Y Unger to remove 57.19% of the assets from the GWB Trust without
      authonzat10n.
             RI}SPPNSE: OJ:>jection. This request is ambiguous. Subject to this
             obJectiOn: Demed.
      REQUEST FOR ADMISSION NO. 37: Admit or Deny that you worked together
      with Beverly Miller to remove 57.19% of the assets from the GWB Trust wtlliout
      authorization.
             ~SP{)NSE:    Opjection. This request is ambiguous. Subject to this
             obJectiOn: Demed.
      REQUEST FOR ADMISSI ON NO. 38: Admit or Deny that you are paying, or
      have paid, Beverly Miller to cooperate with your instructions concerning GWB
      Trust.
             RESPONSE: Denied.
      REQUEST FOR ADMISSI ON NO. 39: Admit or Deny_!hat Candy and Ken are
      not responsible for any tortious interference between GWB Trust and yourself, as
      neither Candy nor Ken ever interfered with the aP.prQ.millte distributions of
      Albert's approximately one-quarter (114) interest in G\¥.8 Trust.
             ~SPPNSE:     Qbiection. This request is multifarious. Subject to this
             obJectlOn: DemeO..
      REQUEST FOR ADMISSION NO. 40: Admit or Deny that, according to the
      FS.A, Albert is responsible for paying his own attorneys' fees.
             RESPONSE: Objection. This request assumes P.Ure legal conclusions
             which have not oeen established and would neea to be aetermined by a
             court.

      REQUEST FOR ADMISSION NO. 41: Admit or Deny that that you have a true
      and correct copy of the FSA.
             RESPONSE: Admit that Intervenor thinks he does.
      R_EOUEST FOR ADMISSION NO. 42: Admit or Deny that CSL is not a legally
      bmding document.
             RESPONSE: Denied.
      REQUEST FOR ADMISSION NO. 43: Admit or Deny that the Estate's
      calculations concerning the percentages of the Heirs' interest in the Estate impact
      GWB Trust.
             RESPONSE: Intervenor has made reasonable inq:giry and the information
             known to him or easily obtainable to him is insufticient with which to either
      JOSHUA UNGER. TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GIDBS                 Page 23




486
             admit or deny this request.
      ~QUESTFORADMISSIONN0.44:                     Admit or Deny that the Estate is being
      mismanaged.
             RESPONSE: Intervenor has made reasonable inq!_li:ty and the information
             known to him or easily obtainable to him is insu11icient with which to either
             admit or deny this request.
      REQUEST FOR ADMISSION NO. 45. Admit or Deny that Howard Kirk's wife is a
      beneficiary interest in GBU Trust.
             RESPONSE: The Intervenor objects to this request as outside the scope of
             legitimate discovery. Subject to this objection: Denied.
      REO\]E~T FOR ADMISSION                NO. 46: Admit or Deny that the FSA is a legitimate
      and bmdmg contract.
             RESPONSE: Admit
      REQUEST FOR ADMISSION NO. 47: Admit or Deny that GWB Trust document
      not fhe CSL or the FSA, establishes the exact percentage of interest which was held
      by Pentex, and which was allegedly reassigned to you.
             RESPONSE: Objection. This request assumes that there is a valid GWB
             Trust document, which is contested. Subject to this objection: Denied.
      REQUEST FOR ADMISSION NO. 48: Admit or Deny that you drafted, or
      instructed to be drafted, documents for Howard Kirk to file that you hoped would
      benefit you in this Cause.

             RESPONSE: Denied.

      REQUEST FOR ADMISSION NO. 49: Admit or Deny that Albert assigned John
      Skotnik a percentage of his interest as detailed in the FSA.

             RESPONSE: Intervenor has made reasonable inquiry and the information
             known to him or easily obtainable to him is insufficient with which to either
             admit or deny this request.
      REQUEST FOR ADMISSION NO.SO: Admit or Deny that it was Albert that
      provided the calculations for the percentages due Ken, Candy, and Howard Kirk
      from the Estate and that Albert provided the calculations to the attorneys of the
      Estate.

             RESPONSE: Intervenor has made reasonable inquiry and the information
             known to him or easily obtainable to him is insufficient with which to either
             admit or deny this request.

      REQUEST FOR ADMISSION NO.Sl: Admit or Deny that you, along with Howard
      Kirk, Danny Unger, Joshua Unger, Albert, and Beverly Miller, all worked together

      JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS                      Page24




487
 with the specific intent to deprive GWB Trust of its assets.

        RESPONSE: Denied.

 REQUEST FOR ADMISSION NO. 52: Admit or Deny that by you and Howard
 Kirk Gibbs cooperated and worked with each other to secure assets from GWB Trust
 to which you were not entitled.

        RESPONSE: Denied.

 REQUEST FOR ADMISSION NO. 53: Admit or Deny that your purpose is to
 receive Albert's distributions from the Estate.

        RESPONSE: Admit that one of our purposes is to receive the share of the
        estate originally owned by Barcroft under the Contract and to have justice
        served.
 REQUEST FOR ADMISSION NO. 54: Admit or Deny that on December 18, 2013,
 signing in the capacity of "Legal Representative" ofPentex, Albert noticed the
 Estate, including Ken as indepep.dent Administrator of the Estate and the Estate's (3)
 three attorneys that 30% ofGWB's Trust assets must be distributed and made
 payable to the GBU Trust.

        RESPONSE: Intervenor has made reasonable inquiry and the information
        known to him or easily obtainable to him is insufficient with which to either
        admit or deny this request.

 REQUEST FOR ADMISSION NO. 55: Admit or Deny that Albert is your
 Legal Representative.
        RESPONSE: Denied.
 EQUEST FOR ADMISSION N0. 56: Admit or Deny that you function as a shell
 entity for Albert.

        RESPONSE: This request is objectionable as it is argumentative. Subject to
        this request: Denied.
 REQUEST FOR ADMISSION NO. 57: Admit or Deny that you, or your
 representative, assisted Howard Kirk in his Answer and his Admission responses in
 thts case.
        RESPONSE: The Intervenor objects to this request as outside the scope of
        legitimate discovery. Subject to this objection: Denied.

 REQUEST FOR ADMISSION NO. 58: Admit or Deny that Admit your inclusion
 of Howard Kirk as a Defendant in this Cause is a smoke screen designed to deflect

 JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS                    Page 25



                                                                                  Exhibit

488                                                                    Page   d   5     of-='+--"
  from the fact that Howard Kirk is cooperating with you in this lawsuit and in the
  lawsuit filed in Tarrant County, which involves Albert, Howard Kirk, Candy, and
  Ken.

             RESPONSE: The Intervenor objects to this request as argumentative, and
             outside the scope of legitimate discovery. Subject to this objection: Denied.

  REQUEST FOR ADMISSION NO. 59: Admit or Deny that, under the terms of the
  FSA, a party who disputes the terms can lose his or her interest in the Estate.
             RESPONSE: This request is objectionable, as the terms of the FSA speak for
             themselves. Subject to this objection, the Intervenor denies that a dispute to
             the terms is a cause for loss of interest.
  REQUEST FOR ADMISSION NO. 60: Admit or Deny that you worked with
  Joshua Unger or Danny Unger to remove 57.19% of the assets from GWB Trust
  without authorization.

             RESPONSE: This request does not make sense, in that Joshua Unger is
             answering these admissions. Denied.

  REQUEST FOR ADMISSION NO. 61: Admit or Deny that Albert is not an
  attorney.
             RESPONSE: The Intervenor objects to this request as outside the scope of
             legitimate discovery. Subject to this objection: Admit.

  REQUEST FOR ADMISSION NO. 62: Admit or Deny that Albert is a member of
  GBUTrust.
             RESPONSE: The Intervenor objects to this request as outside the scope of
             legitimate discovery. Subject to this objection: Denied.
  REQUEST FOR ADMISSION NO. 63: Admit or Deny that Danny Unger is a
  member of GBU Trust.
             RESPONSE: The Intervenor objects to this request as outside the scope of
             legitimate discovery. Subject to this objection: Denied.
  REQUEST FOR ADMISSION NO. 64: Admit or Deny that Howard Kirk is a
  member of GBU Trust.
             RESPONSE: The Intervenor objects to this request as outside the scope of
             legitimate discovery. Subject to this objection: Denied.

  REQUEST FOR ADMISSION NO. 65: Admit or Deny that Albert drafted the
  CSL.

      JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETI-1 GIBBS               Page26




489
        RESPONSE: The Intervenor objects to this request as outside the scope of
        legitimate discovery. Subject to this objection: Denied.


REQUEST FOR ADMISSION NO. 66: Admit or Deny that the name "Albert
Barcroft" does not appear on Albert's birth certificate.
        RESPONSE: The Intervenor objects to this request as outside the scope of
        legitimate discovery. Intervenor has made reasonable inquiry and the
        information known to him or easily obtainable to him is msufficient with
        which to either admit or deny this request.
REQUEST FOR ADMISSION NO. 67: Admit or Deny that Joshua Unger has a
crimmal history.
        RESPONSE: Denied.

REQUEST FOR ADMISSION NO. 68: Admit or Deny that Danny Unger is a tax
protestor.

        RESPONSE: The Intervenor objects to this request as outside the scope of
        legitimate discovery. It is also argumentative, vague and ambiguous.
REQUEST FOR ADMISSION NO. 69: Admit or Deny that Albert is a tax
protester.
        RESPONSE: The Intervenor objects to this request as outside the scope of
        legitimate discovery. It is also argumentative, vague and ambiguous.

REQUEST FOR ADMISSION NO. 70: Admit or Deny that GBU Trust was formed
to aid Albert's avoidance of having to pay federal taxes in the United States.
        RESPONSE: The Intervenor objects to this request as outside the scope of
        legitimate discovery. It is also argumentative, vague and ambiguous. Subject
        to this objection: Denied.
REQUEST FOR ADMISSION NO. 71: Admit or Deny that Albert was Legal
Representative for Pentex at the time this lawsuit was initiated, and that he
consulted with Scott Smith regarding this lawsuit, but that he deliberately
avoided having his name appear in this lawsuit.
        RESPONSE: The Intervenor objects to this request as outside the scope of
        legitimate discovery. It is also argumentative, vague and ambiguous.
REQUEST FOR ADMISSION NO. 72: Admit or Deny that Danny Unger was
the initial Trustee of GBU Trust.
 JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KEN:~E"IH GffiBS              Page 27



                                                                                  Exhibit

490                                                                    Page   2   :1    of
        RESPONSE: The Intervenor objects to this request as outside the scope of
        legitimate discovery. Subject to this objection: Denied.
 REQUEST FOR ADMISSION NO. 73: Admit or Deny that Ken as independent
 Administrator of the Estate is the person who determined how attorney fees for
 Ken, Candy, and Howard Kirk were distributed.
        RESPONSE: The Intervenor objects to this request as outside the scope of
        legitimate discovery. Intervenor has made reasonable inquiry and the
        information known to him or easily obtainable to him is msufficient with
        which to either admit or deny this request.
 REQUEST FOR ADMISSION NO. 74: Admit or Deny that Judge Ferchill during
 the July 31, 2014, hearing stated that only Ken as independent administrator had
 the authority to determine how attorney fees for Ken, Candy, and Howard Kirk
 were distributed.
        RESPONSE: The Intervenor objects to this request as outside the scope of
        legitimat~ discovery. In addition, even if it was a discoverable fact, a
        transcript would be the best evidence of what was said in open court as
        opposed to the vagaries of memory.
 REQUEST FOR ADMISSION NO. 75: Admit or Deny that Judge Ferchill
 during the July 31, 2014, hearing stated that Ken and Candy as individuals
 had no authority to determine how attorney fees for Ken, Candy, and Howard
 Kirk were distributed.
        RESPONSE: The Intervenor objects to this request as outside the scope of
        legitimate discovery. In addition, even if it was a discoverable fact, a
        transcript would be the best evidence of what was said in open court as
        opposed to the vagaries of memory.
 REQUEST FOR ADMISSION NO. 76: Admit or Deny that Albert breached the
 FSA.
        RESPONSE: Intervenor has made reasonable inquiry and the information
        known to him or easily obtainable to him is insufficient with which to
        either admit or deny this request.
 REQUEST FOR ADMISSION NO. 77: Admit or Deny that Howard Kirk
 breached the FSA.
        RESPONSE: Intervenor has made reasonable inquiry and the information
        known to him or easily obtainable to him is insufficient with which to
        either admit or deny this request.
 REQUEST FOR ADMISSION NO. 77: Admit or Deny that Howard Kirk sent
 back Admissions provided from you or Pentex in less than five (5) hours.
 JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS                Page 28




491                                                                  Page   ;)    ~    of
        RESPONSE: The Intervenor objects to this request as multifarious and
        outside the scope of legitimate discovery.
REQUEST FOR ADMISSION NO. 78: Admit or Deny that you or your attorney
has consulted with Sharron Cox, the attorney for Beverly Miller.
        RESPONSE: Objection. This request is multifarious. It invades the work
        product exemption from discovery. It invades the attorney/client privilege.
        It invades the protections for communications made after the anticipation
        of litigation and/or protected pursuant to the "joint defense doctrine"
        recognized in TEX. R. EVID. 503(b )(1) and such cases as Ryals v. Canales,
        767 S.W.2d 226, 228 (Tex. App.-:Dallas 1989, orig. proceeding).
REQUEST FOR ADMISSION NO. 79: Admit or Deny that Beverly Miller is a
beneficiary of the GBU Trust.
        RESPONSE: Denied.
REQUEST FOR ADMISSION NO. 80: Admit or Deny that Beverly Miller
received some type ofbenefit when she transferred 57.19% interest to you.
        RESPONSE: Objection. This request is vague in that it does not specify
        from whom she may have a received a benefit, if any. Deny that any
        benefit was furnished by GBU Trust.
REQUEST FOR ADMISSION NO. 81: Admit or Deny that Beverly Miller or her
attorney Sharron Cox has provided you with assistance with this lawsuit or the
Tarrant case.
        RESPONSE: Objection. This request is multifarious. It invades the work
        product exemption from discovery. It invades the attorney/client privilege.
        It invades the protections for communications made after the anticipation
        of litigation and/or protected pursuant to the "joint defense doctrine"
        recognized in TEX. R. EVID. 503(b)(l) and such cases as Ryals v. Canales,
        767 S.W.2d 226, 228 (Tex. App.-Dallas 1989, orig. proceeding).

REQUEST FOR ADMISSION NO. 82: Admit or Deny that you have provided
Beverly Miller or her attorney Sharron Cox with assistance in this lawsuit or the
Tarrant case.
        RESPONSE: Objection. This request is multifarious. It invades the work
        product exemption from discovery. It invades the attorney/client privilege.
        It invades the protections for communications made after the anticipation
        of litigation and/or protected pursuant to the "joint defense doctrine"
        recognized in TEX. R. EVID. 503(b)(l) and such cases as Ryals v. Canales,
        767 S.W.2d 226, 228 (Tex. App.-Dallas 1989, orig. proceeding).


 JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNElH GffiBS              Page 29




492
                                                    Respectfully submitted,




                                                    Scott Smith
                                                    State Bar Number 18688900
                                                    120 South Crockett Street
                                                    P.O. Box 354
                                                    Sherman, Texas 75091-0354
                                                    e-mail smithlaw@airmail.net
                                                    Facsimile (903) 870-1446
                                                    Telephone (903) 868-8686


                                         CERTIFICATE OF SERVICE

           I do hereby certify that a true and correct copy of the above and foregoing document was served,
  by certified mail, return receipt requested number 7009 2250 0000 2311 4187 toChristy L. Lee, Esq., of
  Law Offices of Christy Lee, P.C., 177 Main Street, Suite 600, Fort Worth, Texas 76102, and to Howard
  Kirk Gibbs, ProSe, at 4360 Western Center Blvd., Suite            Ft. Worth, Texas 76137, on this the 3'd day
  of September, 2014.                                                 ~




  JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GillBS                                      Page 30




493
                          Unsworn Delcaration Pursuant to
                        TEX. CIV. PRAC. & REM. CODE § 132.001

          My name is Joshua Unger. My date of birth is 3/?o/t'l &'5 . I reside at
                          Cl.:iiVI            5      ?o..i · .1'.-ii.    • I am the trustee
   ofthe GBU Friends and As ociates Trust, Intervenor, that I have read the above and
   foregoing Answers to Interrogatories and subscribes to the same on behalfofthe GBU
  ·Friends and .ASsociates·Tru.s.t, Intervenor; that said-responses; subject to-inadvertent
   or undiscovered errors, are based on and therefore limited by the records and
   information still in existence, presently recollected and this far discovered in the
   course of the ~reparation of these responses; that, consequently, I reserve the right to
   make changes in responses if it appears at any time that omissions or errors have been
   made therein or that more accurate information is available; and that subject to the
   limitations set forth herein, the said responses are true and correct and within my
   personal knowledge. I have been ~:~-dxJs.ed that Rute 197 ,2(d)(2) does not require that
   I swear to interrogatory M.SWers apoutpersol),S wit~ kn~~ledge of relevant facts, trial
   witnesses or legal contentions. Since I am not an attorney, I therefore do not swear
   to the truth of any interrogatory answers containing information about persons with
   knowledge of relevant facts, trial witnesses or legal contentions. I declare under
   penalty of perjury_thatthe foregqing1 \Q.str.um~nti~)iue .and corre~t. .
                                      .. .:
                  9/o I /?..o ry
                                       ~..    :


         Dated:                                   , 20.14



                                             .. ~- ~ Tr-utee..
                                              1 shua Unger, Tr:ustee_ of the GBU Friends
                                              Md Assoqi~tes Trust, Declarant




                                                            t•,: •. '




                                                                                       Exhibit

494                                                                         Page      ]Lot
                                                                                                        ·..;"/'/'\      ~
                                                                                                         -·   ". '

                                       CAUSE NO. CV-14-41665

  PENTEX FOUNDATION                               )
                                                                                       ..... C-·'
                                                                                       "'/ (;'.....
                                                                                                              •/
                                                                                                               :...::       (      /.\:>
                                                                                                                                     ...
        PLAINTIFF,                                )                                     ,......,,;-::                           ...___

                                                  )                                0      ';p(;l                   0                     '"
  vs.                                             )                 336TH JUDICIAL D~Ii?r
                                                  )                                    ~
  KENNETH VERN GIBBS; AND                         )
  CANDACE GIBBS WALTON; AND                       )
  HOWARD KIRK GIBBS,                              )
       DEFENDANTS.                                )                 FANNIN COUNTY, TEXAS


            KEN GIBBS AND CANDACE WALTON'S RESPONSE TO PLAINTIFF'S
            AND INTERNVOR'S MOTION FOR PARTIAL SUMMARY JUDGMENT

          Come now, Defendants Kenneth "Ken" Vern Gibbs and Candace "Candy" Walton,

  through their Counsel of Record, Law Offices of Christy Lee, P.C., and, in response to

  Plaintiffs and Intervenor's Motion for Partial Summary Judgment, request that the Court deny

  the Motion, and would show the Court the following:

                                       I. SUMMARY OF MOTION

          1.      Although muddily drafted, it appears that the Motion seeks traditional summary

  judgment pursuant to Tex. R. Civ. Pro. 166a(b).        The Motion did not specify whether a

  traditional or a no-evidence summary judgment is sought.

          2.      Contrary to their mutual assertion, the facts presented in Pentex Foundation

  ("Pentex") and GBU Friends and Associates Trust's ("GBU Trust") Motion are highly disputed.

          3.      Although Pentex and GBU Trust are suing Howard Kirk Gibbs, the Motion

  excluded Howard Kirk in its mention of the parties supposedly "taking actions" inconsistent

  with the Contract for Sale of Land ("the CSL").        No clarifying point was made for this

  omission.



  KEN GIBBS'S AND CANDACE WALTON'S RESPONSE TO PLAINTIFF'S
  AND INTERVENOR'S MOTION FOR PARTIAL SUMMARY JUDGMENT                      CAUSENO. CV-14-41665
  PENTEX FOUNDATION V. GIBBS, ET AL.                                                                          -1-

495
         4.      In large part, Pentex and GBU Trust based their Motion, including legal

 interpretation of various agreements, upon Admissions by Howard Kirk. On receipt of GBU

 Trust's Request for Admissions, Howard Kirk responded within fewer than five (5) hours,

 evidence of collusion among Plaintiff, Intervener, and Defendant. The preponderance of the

 purported facts in the Motion ignored Admissions from Ken and Candy in favor of Admissions

 from Howard Kirk, and relied very heavily on Howard Kirk's Admissions concerning his lay

 interpretation of provisions in the Family Settlement Agreement ("the FSA"). Pentex and GBU

 Trust's Motion ignored all Admissions from Ken and Candy which controverted Admissions

 from Howard Kirk.

         5.      The Motion cited no statutes and no case law upon which Pentex and GBU Trust

 based their argument.

         6.      Since the CSL, there have been subsequent dealings and subsequent agreements,

 including the FSA.

         7.      As Movants for summary judgment, Pentex and GBU Trust bear the burden of

 proof of the facts argued.

                                      II. UNDISPUTED FACTS.

         8.      The number of undisputed facts is small indeed.

         9.      Albert Barcroft was and is not licensed to practice law.

         10.     Albert drafted the CSL, with the parties signing on May 10, 2005.

         11.     The FSA was executed on or about September 5, 2008. See Exhibit A.

         12.     GWB Family and Friends Trust ("GWB Trust") agreement was executed on

 November 7, 2008. See Exhibit B.


 KEN GIBBS'S AND CANDACE WALTON'S RESPONSE TO PLAINTIFF'S
 AND INTERVENOR'S MOTION FOR PARTIAL SUMMARY JUDGMENT
 PENTEX FOUNDATION V. GIBBS, ET AL.


496
          13.      The issue of the CSL's validity was addressed most recently on August 20, 2014,

  at a hearing in Tarrant County Probate Court No.2. Cause No. 2005-0000126-2-D, Walton and

  Gibbs vs. Miller, et al. As was established at the hearing, the CSL was drafted in 2005 by

  Albert, who has portrayed himself repeatedly to multiple parties as the Legal Representative of

  Pentex and GBU Trust.

          14.      Judge Ferchill of the Tarrant County Probate Court No.2 stated:

                   [Albert] cannot enforce a contract that he participated in. He cannot
                   get money for - or unjust enrichment for committing what is a
                   criminal misdemeanor, at least, in Texas. p. 105

                   [Albert] is practicing law without a license, and he cannot enforce a
                   contract that brings money into his pocket for violating the law,
                   period. p. 106

                   (Emphasis added.)

          See Exhibit C. (excerpts ofthe hearing.i

          15.      Albert was a party to the CSL, as were Ken, Candy, and Howard Kirk Gibbs.

  The CSL contained provisions which greatly benefited Albert. Albert advised Ken and Candy

  that as he went to law school he was able to draft legal contracts. See Exhibit D.

          16.      Ken and Candy have raised concerns numerous times over the validity of the

  Contract for Sale of Land ("CSL"), including in the Motion to Show Authority, Motion for

  Change of Venue, Original Answer, Affirmative Defenses, Original Counterclaim, and Rule 13

  Motion for Sanctions, and the subsequent Amended Motion. 2 Ken and Candy observed that



  1
    Only excerpts of the hearing are provided, as the transcript, with exhibits, is over 200 pages.
  2
   Although the Original Answer observed that John Skotnik drafted the CSL, Ken and Candy amended the Answer,
  stating that Albert drafted the CSL without authority and that there existed a question concerning its validity.


  KEN GIBBS'S AND CANDACE WALTON'S RESPONSE TO PLAINTIFF'S
  AND INTERVENOR'S MOTION FOR PARTIAL SUMMARY JUDGMENT                                   CAUSENO. CV-14-41665
  PENTEX FOUNDATION V. GIBBS, ET AL.


497
  they were not represented by counsel concerning the CSL. Discovery Requests from Ken to

  Pentex and GBU Trust also contained queries about the enforceability of the CSL.

                                              IV. LAW.

          17.     As a general rule, an agreement simply to enter into negotiations for a contract

  later does not create an enforceable contract. Scott v. Ingle Brothers Pacific, Inc., 489 S.W.2d

  554 (Tex. 1972).

          18.     "Unconscionability" has no precise legal definition, and it is to be determined on

  a case-by-case basis. In general, "unconscionability" describes a contract that is unfair because

  of its overall one-sidedness or the gross one-sidedness of its terms. Arthur's Garage, Inc. v.

  Racal-Chubb SEC, Systems, Inc., 997 S.W.2d 803 (Tex. App. 1999).

          19.     Unconscionable contracts are unenforceable under Texas law. Whether a

  contract is unconscionable at the time it is formed is a question of law. Hoover Slovacek LLP v.

  Walton, 206 S.W.3d 557, 562 (Tex. 2006).

          20.     The practice of law includes "preparing or negotiating, in whole or in part, a will,

  trust, contract, conveyance, pleading, or other instruction to the extent such preparation or

  negotiation is performed or offered explicitly or implicitly to provide legal advice or legal

  representation." Tex. HS. Code Ann.§ 81.101.

          21.     A person practicing law without a license commits a Class A misdemeanor. Tex.

  Pen. Code§ 38.123.

          22.     To prevail on a motion for traditional swnmary judgment, the movant must show

  that there are no genuine issues of material fact and that it is entitled to judgment as a matter of




  KEN GIBBS'S AND CANDACE WALTON'S RESPONSE TO PLAINTIFF'S
  AND INTERVENOR'S MOTION FOR PARTIAL SUMMARY JUDGMENT
  PENTEX FOUNDATION V. GIBBS, ET AL.


498
  law. Tex. R. Civ. P. 116a(c). Nixon v. Mr. Property Management Co., Inc., 690 SW2d 546,

  548-49 (Tex. 1985).

                                         II. EXHIBITS IN SUPPORT.

          23.      In support of Ken and Candy's response to Pentex and GBU Trust's Motion for

  Partial Summary Judgment, the following Exhibits are presented:

                A. Family Settlement Agreement.

                B. GWB Family and Friends Trust.

                C. Excerpts from Reporter's Record of Motion Hearing. Cause No. 2005-0000126-
                   2-D, Tarrant County Probate Court No.2, August 20, 2014.

                D. Candy's Affidavit in Support of Response.

                                       IV. SUMMATION OF ARGUMENT.

          24.      Summary judgment approving Pentex and GBU Trust's Motion is not justified.

  As movants for partial summary judgment, Pentex and GBU Trust bear the burden of proof of

  material facts presented. Pentex and GBU Trust failed in this regard. They failed to provide

  evidence of their claims, and they failed to provide statutes or case law supporting their claims.

          25.      The facts alleged by Pentex and GBU Trust are not, contrary to their mutual

  claim, uncontested. The dispute concerning the validity is well-documented, the facts pertaining

  to the CSL have been reviewed by the Court, and the CSL has been determined null and void.

          26.      It is an established fact that Albert drafted the CSL, and per law, Albert (a.k.a.

  Pentex, a.k.a. GBU Trust) cannot enforce its terms, as he drafted and provided advice

  concerning an agreement which profited him. Pursuant to public policy, Albert cannot enjoy

  gains from the illegal activity of engaging in the practice oflaw without a license.



  KEN GIBBS'S AND CANDACE WALTON'S RESPONSE TO PLAINTIFF'S
  AND INTERVENOR'S MOTION FOR PARTIAL SUMMARY JUDGMENT                          CAUSE NO. CV -14-41665
  PENTEX FOUNDATION V. GIBBS, ET AL.


499
               27.     The evidence upon which Pentex and GBU Trust relied in the Motion is

      primarily derived from Admissions from Howard Kirk, although Admissions to the contrary

      from Ken and Candy are on record. Only in the rare instances of agreement among the parties

      do Pentex and GBU Trust recognize Ken and Candy's Admissions. Pentex and GBU Trust

      offered no explanation for their straightforward, unquestioning acceptance of Howard Kirk's

      Admissions over Ken and Candy's, nor did Pentex and GBU Trust's Motion seek to resolve the

      discrepancies, other than to promote Howard Kirk's Admissions.          Pentex and GBU Trust's

      approach was simply to pretend that inconsistencies and disputes relative to the CSL do not

      exist.

                                           V. PRAYER FOR RELIEF.

      Ken and Candy ask the Court for the following relief:

               28.    That Pentex and GBU Trust's Motion be denied in all aspects;

               29.    That the CSL be declared null, void, and enforceable;

               30.    Dismissal of the case with prejudice; and

               31.    An award of attorney's fees to Ken and Candy.

                                                    Respectfully submitted,

                                                    LAW OFFICES OF CHRISTY LEE, P.C.



                                                    ChriC~~
                                                    Texas State Bar No. 24052302
                                                    777 Main Street, Ste. 600
                                                    Fort Worth, Texas 76102
                                                    (817) 504-6075
                                                    (800) 437-7901 -Fax
                                                    clee@christy leelaw.com


      KEN GIBBS'S AND CANDACE WALTON'S RESPONSE TO PLAINTIFF'S
      AND INTERVENOR'S MOTION FOR PAlt'nAL SUMMARY JUDGMENT                        CAUSENO. CV-14-41665
      PENTEX FOUNDATION V. GIBBS, ET AI.                                                            -6-



500
                                                 ATTORNEY FOR CANDACE WALTON AND
                                                 KENNETH GIBBS


                                         CERTIFICATE OF SERVICE


  I certify that a true and correct copy of the above Ken Gibbs and Candace Walton's Response to
  Plaintiffs and Intervenor's Motion for Partial Summary Judgment was delivered, pursuant to
  Texas Rules of Civil Procedure, to the following parties on this 25th date of September, 2014:



  Howard Kirk Gibbs                               Mail
  4360 Western Center Blvd., No. 205              Email: hkgibbs@gmail.com
  Fort Worth, TX 76157

  Pentex Foundation, and                          Email: smithlaw@ainnail.net
  GBU Friends and Associates Trust                Fax:
  c/o Scott Smith, Attorney of Record
  120 South Crockett Street
  Sherman, TX 75091-0354




                                                  Christy L. Lee




  KEN GIBBS'S AND CANDACE WALTON'S RESPONSE TO PLAINTIFF'S
  AND INTERVENOR'S MOTION FOR PARTIAl SUMMARY JUDGMENT                          CAUSENO.   CV-14-41665
  PENTEX FOUNDATION 1': GiBBS, ET Al..                                                             -7-




501
;:o12-1o-1:1.os:Js
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                                                                      CAUSE No. GA 2001-00196

                     IN RE GUARDIANSHIP OF                                                     )                                    IN THE PROBATE COURT

                     ESTATE OF KATHRYN H. GIBBS,                                               )                                                          OF

                     AN INCAPACITATED PERSON                                                   )                                    DENTON COUNTY, TEXAS

                                                                                          AND

                                                                         CAUSE No.                   05-126-2

                     1N RE: THE ESTATE OF                                                      §                                         IN THE PROBATE COURT
                                                                                               §
                     BERT HUGHES GffiBS,                                                       §                                                                NO.TWOOF
                                                                                               §
                     DECEASED                                                                  §                                         TARRANT COUNTY, TEXAS


                                               FAMILY SETTLEMENT AGREEMENT

                             THIS FAMILY SE'ITLEMENT AGREEMENT (this "Agreement11 or 'TSA'') is
                     mad~   and entered into by and among the followin& persons. both individually and in the
                     fiduciazy capacities described below:

                            I.     Kenneth Vern Gibbs ("Ken"), Individually and as Independent Executor of the
                                   Estate of Bert Gibbs, Deceased and in all capacities listed under his signature line
                                   below;

                            2.     Candace Gibbs Walton ("Candy"), Individually and in all capacities listed under
                                   her signature line below;

                            3.    · Kip Hughes Gibbs ("Kip'1 , Individually and in all                                                                   capacitie~:~   listed w1der his
                                    signature line below;

                            4,     Howard Kirk Gibbs (''Howard Kirk''), Individually and in all capacities listed
                                   under his signature line below;

                            5.     Kathryn Houseworth Gibbs ("Kathryn"), Individually and in all capacities listed
                                   under her signature line below;

                            6.     Sandra Faye Gibbs ("Sandra'') , Individually and in all capacities listed under her
                                   signature line below;




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and the respective heirs, personal representatives, executors, administrators, successors, agents~
attorneys and assigns of each of them, as evidenced by their signatures affixed hereto. The
preceding persons are sometimes collectively referred to herein as "the Parties" and individually
referred to as "a Party."

                                              Article I
                                             Definitions

1.1    The Parties to this Family Settlement Agree:tn.ent a:re defined as follows:

       a.      The term "Ken" shall mean Kenneth Vern Gibbs, individually, as Independent
               Executor of and as an heir and/or beneficiary of the Estate of Bert H. Gibbs,
               Deceased, and as a potential heir and/or beneficiary of the Estate of Kathryn H.
               Gibbs, Individually and/or as an Incapacitated Person, and as a contingent
               beneficiary of the Mary L. Houseworth Revocable Trust C'Houseworth Trusf)
               and the K.aihryn Houseworth Gibbs Irrevocable Trust ("Kathryn Gibbs Trust''),
               and as the virtual representative and next friend of his children, and their
               successors, plus those minor, unborn, unascertained, and contingent beneficiaries
               of the Estates of oither Bert H. Gibbs, Deceased, and/or the Estate of Kathryn H.
               Gibbs, Individually and/or as an Incapacitated Person.               ·

       b.     The term "Candy" shall mean Candace Gibbs Walton, individually, as an heir
              and/or beneficiary of the Estate of Bert H. Gibbs, Deceased, and as a potential heir
              and/or beneficiazy of the Estate of Kathryn H. Gibbs, Individually and/or as an
              Incapacitated Person, and as a contingent beneficiary of the Mary L. Houseworth
              Revocable Trust ("Houseworth Trost'~ and the Katbryn Houseworth Gibbs
              Irrevocable Trust e•Kathryn Gibbs Trusf'), and as the virtual representative and
              next friend of her children, and their successors, plus those minor, unborn,
              unascertained, and contingent beneficiaries of the Estates of either Bert H. Gibbs,
              Deceased, and/or the Estate of Kathryn H. Gibbs, Individually and/or as an
              Incapacitated Person.

       c.     The tenn "Kip" shall mean Kip Hughes Gibbs, individually, as an heir and/or
              beneficiary ofthe Estate ofBert H. Gibbs, Deceased, and as a potential heir and/or
              beneficiary of the Estate of Kathryn H. Gibbs, Individually and/or as an
              Incapacitated Person, and as the Temporary Co-Guardian of the Estate of Kathryn
              H. Gibbs, an Incapacitated Person, and as a contingent beneficiary of the Mary L.
              Houseworth Revocable Trust ("Houseworth Trust") and the Katluyn Houseworth
              Gibbs Irrevocable Trust (..Kathryn Gibbs Trust'), and as the virtual
              representative and next friend. of his children. and their successors, plus those
              minor, unborn, unascertained, and contingent beneficiaries of the Estates of either
              Bert H. Gibbs, Deceased, and/or the Estate of K.athryn H. Gibb~ Individually
              and/or as an JJ.lcapacitated Person.




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                                d.          TI1e tenn "Howard Kirk" shall mean Howard Kirk Gibbs, individually, as an heir
                                            and/or beneficiary of the Estate of Bert H. Gibbs, Deceased, and as a potential heir .
                                            and/or beneficiary of the Estate of Kathryn H. Gibbs~ Individually and/or as an
                                            Incapacitated Person, and as the fonner Independent Executor of the Estate of Bert
                                            H. Gibbs, Deceased, and as a contingent beneficiary of the Mary L. Houseworth
                                            Revocable Trust ("Houseworth Trust11) and the Kathryn Houseworth Gibbs
                                            Irrevocable Trust (''Kathryn Gibbs Trust..), and as the virtual representative and
                                            next friend of his children, and their successors, plus those minor, unbo~
                                            unascertained, and contingent beneficiaries of the Estates of either B~ H. Gibbs,
                                            Deceased, and/or the Estate of Kathryn H. Gibbs, Individually and/or as an
                                            Incapacitated Person.

                                e.          The term "Kathryn" shall mean Kathryn Houseworth Gibbs, individually, as an
                                            heir and/or beneficiary of the Estate of Bert H. Gibbs, Deceased, and as the
                                            primary beneficiary of the Mary L. Houseworth Revocable Trust ("Houseworth
                                            Trust'') and the Kathryn Houseworth Gibbs Irrevocable Trust (''Kathryn Gibbs
                                            Trust''), and as the Ward of the Temporary Guardianship Estate of Kathryn H.
                                            Gibbs, im Incapacitated Person.

                                f.          The term "Sandra" or "Sandy"' shall mean Sandra Faye Gibbs, individually, and
                                            as the Temporary Co-Guardian of the Estate of Kathryn H. Gibbs. an Incapacitated
                                            Person.

                   1.2         The terms "Affiljate" or ".Aff'illates" of the person or entity designated shall mean such
                               person's spouse (including a fozmer or future spouse), assigns, trustees, employees,
                               directOrs, officers, shareholders, children, descendants, their spouses (including a former
                               or future spouse), assigns, agents, (including without limitation, attorneys, accountants,
                               and investment advisors) trustees, legal representatives and all general and limited
                               partnerships of which the person or entity is a partner, finns or corporations or any other
                               entities directly or indirectly controlling such entity or directly or indirectly controlled by
                               such person or entity (except as otherwise expressly provided herein). It is expressly
                               provided, however, that a reference to an Affiliate shall not include:

                               a.           Compass Bank, and/or any predecessor trustee, in their capacities as trustees of
                                          · either the Houseworth Trust and/or the Kathryn Gibbs Trust.

                               b.           Either Ralph Kenneth Evans, Charles C. Gunun ill, Lewis R. Daniel, Freddie C-
                                            Rodgers, Lewi5 Mohr (a.k.a. Lewis-Thompson, Family of Mohr), or any other
                                            person or entity to whom conveyances were made by either Bert H. Gibbs and/or
                                            Kathryn Houseworth Gibbs in an attempt to establish a trust or trusts for
                                            themselves, or in an attempt to transfer any assets to any unincorporated entity for
                                            any purpose.

                   1.3   The term "Family Settlement Agreemenf' or "Settlement Agreement" or "Agreement"
                   or "FSA" shall refer to this Family Settlement Agreement, including all Exhibits attached hereto./
                   FAMlLY SETI'LEMENT AGru!:EttmNT • Pnge ~
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                    1.4   The tenn 11 Bert H. Gibbs, Deceased" and/or 11Decedent11 shall refer to Bert H. Gibbs, the
                          deceased husband of Mrs. Kathryn H. Gibbs; and the testator with regard to the Last Will
                          and Testament of Bert H. Gibbs, Deceased, dated December 6, 2004, which was admitted
                          on November 14, 2006, to probate in Cause No. 05-0126-2, in the Probate Court No. 2 in
                          and for Tarrant Cowtty, Texas, and styled: "Estate of Bert Hughes Gibbs, Deceased."

                    l.S   The term "Kathryn H. Gibbs, an Incapacitated Person" or "Ward" shall refer to
                          Kathryn H. Gibbs, the surviving spouse of Bert H. Gibbs, Deceased, and the testator with
                          1·egard to the holographic Last WiU and Testament of Kathryn H. Gibbs, dated November
                          4, 2003, and the Ward in the Temporary Guardianship proceedings pending in the Probate
                          Court of Denton County, Texas, in Cause No. GA 2001-196, styled: In Re Guardianship
                          of the Estate of Kathryn H. Gibbs, an Incapacitated Person."

                    1.6    The term "Claims'' and/or "Proceedings" shall refer to and include any and all claims,
                           causes of action, debts, demands, actions, costs, expenses, losses, damages, charges,
                           challenges, contests, liabilities, promises, agreements, deceptive practice claims, claims in
                           equity, sUits, and all other obligations and liabilities of whatsoever nature KNOWN and
                          UNKNOWN, fixed or contingent, liquidated or unliquidated, anticipated or unanticipated,
                           at law or in equity, for any type of relief or redress, including but not limited to money
                           damages, whether founded on contract, tort (including but not limited to tortious
                          interference with inheritance rights, con:version, fraud, tax issues, undue influence, false
                          representation, conscious indifference, reckless disregard. and/or malicious conduct),
                          fiduciary duty, negligence, gross negligence, intentional infliction of emotional distress,
                          reimbursement, breach of fiduciary duty to disclose matmal informatio~ indebtedness,
                          fraudulent inducement, and any other ground, whether or not asserted, which any person
                          has, may have, or have had against the released and/or inde.m.nified party, now existing or
                          arising in the future, including the claims brought or which could have been brought by~
                          between OI among the Parties through the effective date of the Agreement. save and
                          except for the warranties and representations under this Agreement. THE PARTffiS
                          AGREE THAT THE DEFINITION OF ucLAIMS" IS AND SHALL BE AS BROAD AS
                          THE LAW Wll,L ALLOW, including the claims brought or which could have been
                          brought by, between or Blllong the Parties through the effective date of the Agreement
                          relating to the following:

                A.        Cause Nu:mber GA 2001-196 in the Probate Court of Denton County, Texas, styled: "In
                          Re Gttas:dianShi.p of the Estate of Kathryn H. Gibbs, An Incapacitated Person"
                          (hereinafter referred to as the "Guardianship Proceeding'') and the Appeal C\llTen.tly
                          pending m the Second Court of Appeals in Fort Worth, CallBe Number 02~05~00460-CV
                          (the "460 Appeal'' or tho "Guardianship Appeal" or the "Administrative Appeal''), An
                          appeal of the Second Court of Appeals ruling in the 460 Appeal is now pendi11g in the
                          Te:x.as Supreme Court under Cause No. 08-0501 (the "SOl Appeal").

                B.        Any proceedings concerning the marriage of Bert and Kathryn, inclu.ding Cause Number
                          GA 2001-196~01 in the Probate Court of Denton County. Texas, styled: "In the Matter of;1
                                                                                                                  ,.


   505
2012·1~15, 08;40

                                                                                             :·- ..




                           the Maniage of Kathryn Houseworth Gibbs and Bert H. Gibbs." (Hereinafter referred to
                           as tbe "Divorce Proceeding."). This proceeding was originally filed in the 362nd
                           Judicial District Court of Denton County, Texas, and thereafter transferred to and made
                           an ancillary proceeding to the Guardianship Proceeding. There is also an equitable bill of
                           review proceeding pending in the Divorce Proceeding (the "Bill of Review'') in Cause
                           No. 2001M196-08.

                   C.       Cause Number GA 2001-196-02 in the Probate Court of Denton County, Texas, styled:
                            "Kip H. Gibbs, As Next Friend for Kathryn Houseworth Gibbs vs. Candace Gibbs
                            Walton, Et AJ." (hereinafter referred to as the "Y2K Proceeding"). This proceeding was
                            originally filed in the Probate Court ofDenton County) Texas, as Cause No. TI-2002-01-
                            108, and was thereafter transferred to and made an ancillary proceeding to the
                            Guardianship Proceeding. There is also an appea1 pending in the Second Court of
                          . Appeals in Fort Worth, Cause Number 02-0S~00143~CV (the "143 Appeal" or the
                            HTrust Appeal"). An appeal of the Second Court of Appeals ruling in the 143 Appeal is
                            now pcndil\g in the Texas Supreme court under Cause No. 08·521 (the "521 Appeal").

                   D.      The following actions have also been filed ancillary or incidental to the Guardianship
                           Proceeding:

                           1.          J-W Operating Company v. Kathryn G. Gibbs, et al., in Cause No. 2004·111 03-
                                       16, in the 16111 Judicial District Court ofDenton County, Texas.

                           2.          Burlington Resources Oil & Gas Company v. Kip Hughes Gibbs, et al.. in Cause
                                       No. 2001·196--05, in the Probate Co·wt ofDenton County, Texas.             '

                           3.          Any dispute with Devon Energy regarding oil and gas revenues which have been
                                       and cUITently are bein~ held in suspense, including, but not limited to Devon
                                       Energy Production LP v. Kip Hughes Gibbs, et. al., pending in Cause No. 05·126-
                                       2:.A in the Probate Court No.2 of Tarrant County, Texas.

                        ,. 4.          Any dispute with J.W Gathering Company.

                           5.          Cause No. 096-225949-07. pending in the 96tn Judicial District Court of Tarrant
                                       County. Texas~ styled KepJJeth Gibbs, et.. al.;v. Wells Fargo Bank, N. A. el al.

                   E.      There is a dispute between the Parties relating to th~ "Will of the Ward", which remains
                           unresolved and will, in all likelihood, result in a Will Contest being filed following the
                           death of Kathryn and the same is anticipated by all Parties (the "Kathryn's Will Contest
                           Proceeding").

                   F.      There is a dispute between the Parties relating to the "Will of the Decedent", which
                           remains unresolved and will, in all likelihood, result in a Will Contest being filed, and the
                           same is anticipated by all Parties (the "Bert's Will Coutest Proceeding"),



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                        1.7         The term "Effective Date'' of this Agreement means the date the la.it party signs this
                                    Agreement. However, this FSA will not be binding upon each respective Party until all
                                    Parties have signed this Agreement, at which time tbe Agreement shall immediately be
                                    binding upon each respective Party signing this Agreement.

                        1.8         The terms "the Parties 11 or "the Parties hereto" shall collectively refer to Ken, Candy,
                                    Kip, Howard Kirk. Sandra, and Kathryn.

                        1.9         The tenn a "Party" shall refer to any one of Ken, Candy, Kip, Howard Kirk, Sandra, and
                                    Kathryn, who shall be referenced specifically.

                        1.10       The terms "Predecessor" or "Predecessors" shall refer to any person or entity serving
                                   prior in time as a fiduciary to the fiduciary in question.

                        1.11       The terms "Successor" or "Successors" shall refer to the heirs, devisees, descendants,
                                   legatees, executors, appointees under any power of appointment,. personal
                                   representatives, successor trustees, and any successors of a Successor or Successors.

                        1.12       The term "Transa.ctioo5" shall mean the following events:

                                   a.              Any and all .acts~ transactions, and proceedings (including any failure to aot) of
                                                   any of the Parties, the Decedent. the Ward, and their Affiliates on or before the
                                                   ~f:fective Date; and


                                   b.              The negotiation and consummation ofthis Agreement.

                        1.13       The term "Guardians' and/or ':Guardian'' shall mean Kip Hughes Gibbs and Sandra
                                   Faye Gibbs, either as Temporary Guardians and/or as the purportedly currently appointed
                                   and duly acting Guardians of the Estate of Kathryn H. Gtbbs.

                        1.14       The tenn "Executor" shall mean Kenneth Vern Gibbs, as the currently appointed and
                                   duly qualified Independent Executor of the Estate of Bert Hughes Gibbs, Deceased.
                                   Kenneth Vern Gibbs was appointed as the Independent Executor of the Estate of Bert
                                   Gtbbs, Deceased on Novembm- 14, 2006. The terro "Executor" shall include both the
                                   singular and the plural and shall mean the executor or executors acting hereunder at my
                                   time, whether one or more.

                        1.1 S      The terms "Guardianship Estate," ' 1Temporary Guardianship Estate," and/or
                                   "Kathryn's Estate'' shall refer and include all properties, real or personal, however and
                                   whenever acquired, and any income there from, which may belong to the Ward, Kathryn
                                   H. Gibbs.

                        1.16       The term 11 Probate Estate'' shall refer and include all properties, real or personal,
                                   however and whenever acquired, and any income there from, which may belong to the
                                   Decedent, Bert Hughes Gibbs, Deceased
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                    1.17 'The term ''Will of Decedent" shall refer to the Last Will and Testament of Bert Hughes
                          Gibbs, Deceased, dated December 6, 2004, which has been admitted to probate in Cause
                         No. 05-0126·2 on November 14, 2006, in the Probate Cou.rt No. 2 in and for Tarrant
                          County, Texas, and styled: "Estate of Bert Hughes Gibbs, Deceased" along with any
                          codicils which may exist. as well as any prior Wills of the Decedent.

                    1.18      The tem1 "Will of the Ward" shall refer to the Last Will and Testament of Kathryn H.
                              Gibbs, which may exist as of the Effective Date, which would include the holographic
                              Last Will and Testament of Kathryn H. Gibbs. dated November 4, 2003, along with any
                              codicils thereto, as well as any prior Wills of the Ward or any new and additional Wills
                              of the Ward, which might come into existence in the future.

                    1.19      The terms "child," 11 child.reu,"· "descendant," "descendants," and other words of like
                              import shall include both natural children and descendants and those legally adopted into
                              the line of descent.

                    1.20      All references to "Internal Revenue Code" shall be to the Intemal Revenue Code of
                              1954, as it exists at the time of execution of this will or as amended from time to· time
                              thereaftel' unless otherwise designated, or to its' successor statute.

                    1.21      As used in this Agreement, the word "trustee" shall mean the respective Trust~s of     the
                              Mary L. Houseworth Revocable Trust and the Kathryn Houseworth Gibbs Irrevocable
                              Trust, and/or any and all other trusts created by either Bert H. Gibbs and/or Kathryn
                              Houseworth Gibbs, and/or any trusts created by the terms of tbis Agreement, and shall
                              include any and all trustees from time to time serving under such trusts and shall include
                              and refer to both the original trustee, as well as any successor or substitute tmstee or
                              trustees of any such trust and/or trusts, regardless of their validity.

                    1,22      The term "personal representative'' shall include an executor, independent executor,
                              administrator, in~ependent administxator, andJor temporary administrator, together with
                              their successors.

                    1.23      All references to the "Kathryn H. Gibbs 867 Management Trust" shall mean that
                              certain 867 Management Trust created by this FSA for the sole benefit of Ward and
                              created pursuant to §867 of the Texas Probate Code.

                    1.24      ~ used in this settlement agreement, the masculine, feminine and neuter genders shall
                               each be deemed to include the others unless the context requires otherwise. The singular
                               shall include the plural and the plural shall include the singular wherever the context of
                               this s~ttlement agreement permits.




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2012-IIH~   08:41

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                                                                    Article n

                                                                    Recitals

                              WHEREAS, the Decedent, Bert Hughes Gibbs, and Kathryn H. Gibbs, were married on
                    JW1e 9, 1951;

                           WHEREAS, to the maniage of the Decedent and Kathryn. were bom four children (the
                    "Gibbs Children''), all of whom are adults and Parties to this Agreement, and who are:

                                         Kenneth Vern Gibbs who was born onFebmary 7, 1952;

                                         Candace Gibbs Walton who was born on September 16, 1953;

                                        Kip I-lugbes Gibbs who was born on March 3, 1960; and

                                         Howard Kirk Gibbs who was born on Septerober 7, 1962; and

                           WHEREAS, the Decedent, Bert Hughes Gibbs, died on December 31, 2004, in Dallas,
                    Dallas County, Texas, at the age of75 years, and was domiciled at the time oflus death in Tarrant
                    County, Texas;

                           .WHEREAS, prior to, at the time o~ and subsequent to the death of the Decedent. the
                    following cases or disputes involving the Decedent, the Ward, their property and the Parties were
                    pending and continue to remain unresolved and in dispute (collectively, the ~4proceedings"):

                             A.         The Guardianship Proceeding and the Guardianship Appeal.;

                             B          The Divorce Proceeding.

                             C.         The Y2K Proceeding and the Trust Appeal.

                             D.         The Interpleader Actions.

                             E.         The Will Contest Proceeding of Ward.

                             F.         Tbe Will Contest Proceeding of Decedent.

                             WHEREAS, the 11 Will of Decedent" which refers to the Last Will and Testament of Bert
                    Hughes Gibbs, Deceased, dated December 6, 2004, which has been admitted to probate in Cause
                    No. 05·0126·2 on November 14·, 2006, in the Probate Cow-t No. 2 in and for Tarrant County,
                    Texas, provides that with the exception of a specific bequest to Kip ill the amount of$100.00, all
                    other property of the Decedent is to be divided in equal shares among Ken, Candy, and Howard
                    Kirk;


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              'WHEREAS, there also exists a purpOrted "Will ofKathtyn11 which shall refer to any Last
      Will and Testament of Kathryn H. Gibbs, which may exist as of the Effective Date, along with
      any codicils thereto, as well as any prior Wills of KJ.thcyn or any new and additional Wills of
      Katb.ryn. which might come into existence in the future, which by its terms will attempt to
      dispose of the assets and Estate of Kathryn, by either conveying the same entirely to Kip, to the
      exclusion of Ken, Candy, and Howard Kirk; and/or otherwise in a manner inconsistent with the
      tenns of this Family Settlement Agreement.

             WHEREAS, at a minimmn, disputes exist between the Parties a.s stated in the
      Proceedings and as to:

                     A.     The validity of the Guardianship Proceeding and the authority of Kip
                            Hughes Gibbs and Sandra Faye Gibbs to act as Permanent Guardians of
                            the Estate of the Ward, as well as their accoWitability ~md liability for
                            having ac1ed as such;

                     B.     The validity of the judgment entered in the Divorce Proceeding;

                     C.     The validity of the judgme~t entered in the Y2K Proceeding;

                     D.     The validity of the testamentary instrunlents executed by the Decedent and
                            the Ward; and

                     E.     The liability of the Parties to each other for various alleged wrongdoings.

             W11EREAS, it is believed that certain of the Parties are or were in possession of assets of
      the Ward's and/or Decedent's Estates that have not been delivered to either the Temporary
      Guardians of the Ward and/or the Executor of the Decedent to date, and each party
      acknowledges that the issues regarding the real and personal property assets shan be finally
      disposed of with the signing of, and in accordance with, this FSA;

             WREREAS, the Parties survived the Decedent by the statutory period ond are Parties to
      this Agreement;

              'WHEREAS, issues and disputes e:tist between the Parties regarding the amounts and/or
      assets due the Ward's and/or Decedent's Estate;

             WHEREAS, the Parties wish to resolve all differences and disputes between them           it1
      order to end the Proceedings md to avoid further litigation and expense and to make pea.ce;

              WHEREAS, by executing this Agreement no Party hereto concedes any legal or factual
      contentions of any other Party or makes any admissions but, rathex, each Party denies any
      contrary contention made by any other Party and enters into this Agreement solely to terminate
      and settle their differences in an effort to minimize costs, expenses, and ongomg attomey's fees.



                                                                                                  ~
510
          ..   -·-·--·-···--------------
Z01Z-11H5 08;41




                                                                           Article ill

                                                                           Agreements

                            NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, including the
                  wutual agl.'eements, understand)ngs, stipulations, representations, and releases set forth herein, ~e
                  sufficiency of such consideration being hereby acknowledged and confessed by each of the
                  Parties hereto, make the following representations and agreements:

                  3.1       Will Probated apd Portigm of WIU        Supencc;!~. The Parties agree that the Last Will
                            and Testament of Bert Gibbs, although admitted to probate, shall be superseded by this
                            Agreement to tbe extent that if any tenn of it conflicts with or contradicts this Agreement
                            then, in that event, this Agreeznent and only this Agreement shall control, includlng, but
                            not limited to determining how, when and to whom Bert's Estate should be distributed.

                  3.2       Approval of l$A. This FSA shall be submitted for approval by the Statutory Probate
                            Court of Denton County, Texas, with all parties agreeing to a contemporanoousJy filing
                            of a joint application to appoint Jimmy Walker~ of Houston, Texas~ as the Pennanent
                            Guardian of the Estate of Kathryn. This Application will be filed in the Statutory Probate
                            Court of DentOl'l County, Texas, in a new cause number. All Parties agree to join in any
                            motion necessary to:

                                    a.      seek: the recusal ofJudge Don Windle as the probate judge presiding; and

                                    b.      seek the appointment of Judge John Hutchison as the probate judge to
                                            preside over these new pennanent guardianship proceedings for Kathryn;
                                            and
                                   c.       seek the appointment of S. Camille Milner of Denton, Texas, as the
                                            Attorney Ad Litem;

                                   d.       seek the -ratification and approval of this FSA by the probate court in the
                                            petmanent guardianship proceeding; and

                                   e.      seek the approval of the creation of the Kathryn Houseworth Gibbs 867
                                           Management Trust :in the fonn of Exhibit "A", attached hereto and made a
                                           part hereof (which is hereby ratified and approved by all Parties as a part of
                                           the approval of this FSA) by Jimmy Walker in his role as Guardian of the
                                           Estate.

                            AU Parties agree to execute auy agreements necessary to waive the necessity for any
                            service and by agreement voluntarily enter their appearance in the new pennanent
                            guardianship proceedings, in order to resolve these disputes and to also obtain the judicial
                            approval of this FSA by the Court in the new pennanent guardianship proceedings.


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                         Further, the Parties agree that as a part of the Attorney Ad Litem's review of the propriety
                         of this Settlement Agreement, that the Attomey Ad Litem shall select the psychiatrist.
                         arrange with, and cause to be perfonned a mental and/or psychiatric evaluation upon
                         Kathryn by a psychiatrist having the ability to do so, to determine the current mental
                         capacity of Kathryn, and more specifically whether or not she has the mental capacity to
                         enter into this Settlement Agreement and carry out all of its tenns. The psychiatrist so
                         chosen must be approved by the Proposed Guardian of the Estate before any examination
                         is perfonned. If the Proposed Guardian of the Estate does not give his approva~. then the
                         Attorney Ad Litem will select another psychiatrist until a psycbia1rist is approved by the
                         Proposed Guardian of the Estate. The Parties agree that Dt. James Shupe will not be
                         selected. The cost of this mental evaluation will be home by Kathryn's Estate.

                   3.3    Swar!t~   Prqperty of K!,tbQ'n. The Parties agree that the Separate Property of Kathryn
                         is described as follows:

                                 (a)    The Mary L. Houseworth !l'llSt;
                                 (b)    The Kathryn Houseworth Gtbbs Irrevocable Trusts;
                                 (c)    TI1e Kathryn H. Gibbs 867 Management Trust contemplated by this FSA;
                                 (d)    The Kansas property inherired by Kathryn shall be transferred to and made
                                        a part of the Mary L. Houseworth Trust;
                                 (e)    P:repaid Funeral Contract with Mount Olivet Cemetery Association;
                                 (f)    Approximately 56 shares of stoek in Chevron Texaco Coxporation; and
                                 (g)    Any and all items of personal property presently in Kathryn's possession
                                        on the Effective Date of this FSA

                          The above described Separate Property of Kathryn shall belong to and remain the Separate
                         ·Property of Kathryn to the exclusion of Bert and all future claims of separate property
                          outside of ~e above described property, are hereby forever waived and released.

               3.4       Division of Separate and/or Comm.uuitv PropertY of Bert and Katbrvn. The Separate
                         and!or Community Property of Bert and Kathryn Gibbs shall be divided and allocated as
                         fo~lows:


                                 a.)    The sum of One Million Dollars ($1,000,000.00) shall be distributed to
                                        Kathryn from the fund$ held in the Registry of the Court in Cause No.
                                        20()4..11103-16 styled "J; W. Operating Company v. Kathryn H. Gibbs, et
                                        al." filed in the 16th Judicial District Court of Denton County, Texas. Said
                                        sum shall be paid to the Kathryn H. Gibbs 86? Management Trust for the
                                        use and benefit of Kathryn for and during her lifetime.

                                b.)     All undivided One"fourlh (1/4) surface estate interest only in and to the 532
                                        acres, more or less, known as the "Gibbs' Homeplace" (more particularly
                                        described in Exhibit "B11 attached hereto and by referenc.e incorporated
                                        herein, shall be allocated to Kathryn). The interest shall be transferred to a
                                        "867 Management Trustn for the use and benefit of Kathryn for alld




                                                                                                      Page
2012·11}-15 08:42

                                                    '··




                                             during her lifetime. Further, it is the agreement of the Parties that all of the
                                             surface estate of the 532 acres win immediately be placed on the market for
                                             sale at a current market price.

                                    c.)      All items of personal property presently in the possession of Kathryn are
                                             awarded to Katluyn, and

                                    d.)      Save and except for Kathryn's separate property contained in the Mary L.
                                             Houseworth Trust, the Kathryn Houseworth Gibbs J.rrevoca.ble Trust; the
                                             Kathryn H. Gibbs 867 Management Trust contemplated by this FSA; the
                                             Kansas property to be ma.dt a part of the Mary L. Houseworth Trust, a
                                             prepaid Funeral Contract with Mount Olivet Cemetery Association;
                                             approximately 56 shares of stock in Chevron Texaco Corporation, to be
                                             transferred to the Mary Houseworth Revocable Trost; all items of personal
                                             property presently in Kathryn's possession on the Effective Date of this
                                             FSA,         the sum of $1,000,000.00, and an undivided one-fourth (114)
                                               fractional surface estate interest in the Gibbs' Homeplace assigned to the
                                               Kathryn H. Gibbs 867 Management Trust, all other property belonging to
                                               either Bert and/or Kathryn, whether the same be separate and/or
                                               community, real, personal, and/or mixed, or a combination of the same, is
                                            .· by agreement of the Parties transferred, assigned and conveyed to the Bert
                                               Gibbs Estate.

                    3.5   Clearing Title. All Parties represent that they will use their best efforts to obtain the
                          agreement of any person. or entity that may have or claim an interest in any property of
                          Bert and/or Kathryn to agree to forever release said interest by co1weying the same to the
                          Estate of Bert, and work toward resolving any issues that could in any way have or create
                          a cloud on title to any property of :Bert ~d Kathryn.

                          However, if the agreement(s) and release(s) cannot be obtained from such third persons
                          and/or entities on a volUntary basis, then, in thaf event, all parties authorize both the
                          Executor of :Bert's Estate and the Pennanent Guardian of Kathzyn's Estate to take
                          whatever ·actions that may be necessary to rightfully obtain full interest and/or to clear title
                          to said properties.

                          The attorneys compensated pursuant to contingent fee agreements with the Parties, as
                          provided i11 Paragraph 3.15, agree that any work they perform to marshal and clear title to
                          property as provided in this Paragraph will be performed pursuant to their respective
                          contingent fee agreements and not as an additional expense of administration of any estate
                          pro-vided for in this Agreement.

                    3.6   J)istribufu!n/Pnymeut of Kathan's Share. No p&i of Kathryn's share of the Estates
                          shall be subject to administration in the Estate of Bert Gibbs and it shall never be
                          subjected to the expense of such administration. Kathryn's funds of $1,000,000.00, shall
                          be transferred to the Kathryn H. Gibbs 867 Management Trust within 30 days from the




    5 13
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                entry of the final Ordei: in Cause No. 2004-11103-16 styled "J. W. Operating Company v.
                Kathryn H. Gibbs, et al!' filed in the 16th Judicial District Court of Denton County> Texas
                or within 10 days from the creation of the 867 Management Trust, whichever is later.
                Kathryn's undivided one-fourth (114) interest in the surface estate of the Gibbs'
                Homeplacc shall be ttansferred to the Kathryn H. Gibbs 867 Management Trust at the
                same time as the $1,000,000.00 is transferred, by Special Warranty Deed to the Trustee of
                said 867 Management Trust.

        3. 7    Ultimate Division Qf Bert's and Kathryn's Propertv. The Property of both Bert Gibbs
                and Kathryn Gibbs, following her death, shall ultimately be divided as follows (the
                "Distribution Shares"):

                a)       Bert Gibbs' Estate. By this Family Settlement Agreement (which supersedes and
                         overrides in every way the tenns of any Will of the Decedent, Bert Gibbs,
                         regarding the distribution of his Estate), the net property in Bert Gibbs; Estate,
                         after distributing Kathryn's share per this Agreement and paying all Estate
                         administrative expenses, shall be divided into four equal shares to be distributed
                         outright end' free of trust or any encumbrance as follows:

                         (i)     Ken- twenty-five percent (25%);
                         (ii,)   Candy- twenty-five percent (25%);
                         (iii)   Kip -twenty-five percent (25%); and
                         (iv)'   Howard Kirk- twenty-five percent (25%).

                In the event that any child should not survive the execution of this agreement, then, in that
                event, his or her share of the Bert Gibbs Estate shall pass pursuant to the terms and
                provisions of such child's last will and testament. In the event that the deceased child
                does not have a last will and testament, then, in that event, his or her share of the Bert
                Gibbs Estate shall pass per stirpes, and not per capita, to the child's descendants.

                h)      Katluyn Gjbbs' Estate. Upon her death, by this Family Settlement Agreement
                        (which liiUpersc:de.s and override5 in ev!;xy way any Will of Kathryn Gibbs,
                        regarding distribution ·of her Estate), the net property in Kathryn Gibbs' Estate,
                        and/or Trusts, after paying all Estate administrative expenses and administrative
                        expenses of the Mary L. Houseworth Trust, the Kathryn Houseworth Trust, tho
                        Kathryn H. Gibbs 867 Management Trust and upon termination and. complete
                        wrap-up of both Kathryn's Estate and the Kathryn H. Gibbs 867 Management
                        Trust, shall be divided into four equal shares to be distributed outright and free of
                        trust or any encumbrance as follows:

                        1.       Ken-twenty-fivepercent (25%);
                        ii.      Candy -twenty-five percent (25%);
                        iii.     Kip- twenty-five percent (2S%); and
                        iv.      Howard Kirk- twenty-five percent (25%).


       -~ SETI'LEMENT AGREEM£NT ·Page l3
      ~""b~'lfSA 8'15'08·fiul

514                                   ~ v ~,     c~\JJ                        }1f.~rt1y
                                                                                           Page
2012-1~ 15   08;43




                             In the event that any child should not survive Kathryn Gibbs, then. in that event, his or her
                             share of the Kathryn H. Gibbs Estate shall pass pursuant to the terms and provisions of
                             such child's last will and testament In the event that the deceased child does not have a
                             last will and testament, then, in that eventi his or her share of the Kathryn H. Gibbs Estate
                             shall pass per stirpes, and not per capita, to the child's descendants.

                     3.8      Decedent's Testamentary Instruments.. Each Party represents to every other Party that
                              he or she is not aware of any testamentary instruments executed or alleged to have been
                              executed by Decedent that remained in existence at the time of his death other than the
                              Last Will and Te5tament of Bert Hughes Gibbs, Deceased, dated December 6, 2004,
                              which has been admitted to probate in Cause No. 05-0126·2, in the Probate Court No.2 in
                              and for Tarrant County, Texas, and styled: "Estate ofBert Hughes Gibbs, Deceased. 11 The
                              Parties agree that, if there are arJ.Y other testamentary instruments of Bert Gibbs in
                              existence, the December 6, 2004 Will shall remain probated to the exclusion of all others
                              and ownership of the property of Bert's Estate shall be detennined solely by the tenns of
                            · this FSA, which shall supersede the dispositive provisions in the Will of Decedent.

                     3.9     Ward's Iestamtptarv Instruments. Each Party represents to every other Party that
                             notwithstanding the terms of any testamentary instruments executed or alleged to have
                             been executed by the Ward and that may remain in existence at the time of her death, ~t
                             the terms and provisions of this Family Settlement Agreement as to the disposition and
                             administration of the Ward's assets and estate, will contractually control and supersede
                             any tenns contained in such testamentary instruments. In the event that the psychiatric
                             evaluation of Kathryn establishes that she is competent and has the necessary testamentary
                             capacity to execute a Wil4 then, in that event, Kathryn agrees to execute contemporaneous
                             with the execution of this Agreement, a new contractual Will (hereinafter referred to as
                             the "Contractual Will of Kathcyn"}, which provides that upon Kathryn's death all of her
                             estate will be devised and conveyed in equal shares to Kip, Candy, Kenneth. and Howard
                             Kirk, if living, and. if not living then to their respective descendants, per stirpes and not per
                             capita. Further, all Parties agree to produce prior to the exeeution of this Settlement
                             Agreemen~ copies of any Wills of Katlu'yn, which the Party purports to be the cUlTent
                             Last Will and Testament of Kathryn. Failure to produce any such Will, will serve as an
                             additional contractual prohibition against the Party and!or the Affiliates of the Party from
                             later offering for probate such instrument as a Will.

                             The Parties agree that no matter what testamentary instrwnents of Kathryn Gibbs may
                             exist, the Contractual Will of Kathryn (if executed by a competent :Kathryn) shall be
                             probated in a Probate Court of Denton County, Texas, without contest or objection, to the
                             exclusion of all other Wills of Kathtyn which might exist, and the ownership of the
                             property ln Kathryn's Estate shall be detennined solely by the terms of this FSA and the
                             identical provisions of the Contractual Will of Kathryn, which terms and provisions shall
                             supersede the dispositive provisions ofany other Will of the Ward. All Parties agree that
                             for convenience, venue over Kathryn's Estate shall be in Denton County, Texas.

                     3.10    Existence of Marriage of Decedent and Ward. Each party agrees that notwithstanding


                ~ Y SEIT.t.EMJ.:N'J' AGREEMENT· Pa~ 14
              ~\Gibbs\PSA 8'\5'08-linPI



    515                                              i<V'
               the tetmli and provisions of any Orders. Judgments, or Decrees to the contrary issued by
               the Probate Court of Denton County, Texas, in the Divorce Proceeding, including, but not
               limited to the Amended Decree of Divorce dated November 18, 2003, and based on the
               ruling by the Second Court of Appeals wherein the Denton County Probate Court lacked
               jurisdiction to transfer the divorce proceeding to the Statutory Probate Co\ll't, that the
               Decedent and the Ward were and continued to be married as of the date of the Decedent's
               death, resulting in the Ward being the Decedent's surviving spouse and widow. Further,
               the Parties agree that any and all other Orders, Judgments, and/or Decrees issued by the
               Court dealing with the status of the maniage of Bert and Kathryn Gibbs are or shall be
               vacated and are to be treated as if they are null1 void. and nonexistent.



      3.11. Certain Previously·Conveyed Assets

               A.            The Parties agree that subject to paragraph 3.11 D. below. they will fully account
                             for any real property, oil and gas, mineral, royalty a:nd other real property interests,
                             and any cash received by them on account of any real property, oil and gas,
                             mineral, royalty and any other real property interests, previously conveyed to
                             them, or an associate of theirs, including but not li:mited to any alias, or alter ego of
                             the~ or used by them a.t anytime, whether trusts, corporations, unincorporated
                             business organizations, or any other entity controlled in whole or in part by any of
                             them, Bert and/or Kathryn. If such asset is currently under the ownership and
                             control of a Party or an associate of the Party, including but not limited to any
                             alias, or alter ego of theirs, or used by them at anytime, whether trusts,
                             corporations, unincorporated business organizations, or any other entity controlled
                             in whole or in part by thorn, then, in that event the real property interest and cash
                             so received shall be transferred to the Estate of Decedent, within 30 days of the
                             approval of this FSA.

               B.            FOllllit gf Pi.sclosure. Each party agrees that within 30 days of the full execution
                             oi this Family Settlement Agreement that each party will attach to this Agreement
                             a full and complete list of any gifts and/advancements of real property, oil and gas,
                             mineral, royalty, and any cash from real property, oil and gas, mineral, o:r royalty
                            interests, received by the Party and/or an .'Ufiliate of the Party, including but not
                            limited to any alias, or alter ego of theirs, or used by them at anytime. whether if
                            trusts, corporations, unincorporated business organizations, or any other entity
                            controlled in whole or in part by them, from either the Decedent and/or the Ward.
                            The failure of any Party or Parties to comply with this Paragraph shall not affect
                            the enfotceability of this Family Settlement Agreement, but rather shall be a
                            breach of this Agreement.
               C.           One hundred percent of all real property, oil and gas, mineral, royalty and any cash
                            disclosed in A. and B. above shall be conveyed in kind or by Special Wmanty
                            Deed or other appropriate document of conveyance to the Estate of Decedent

           V SETTLEMENT AGR.iEI'tn;NT- Pap 15
         $\OibbsiFSA 8'1 S'OII·tiNII

                                                   }(V C
516
                                                                                                  Page
                          within 30 days from the date of this Family Settlement Agreement, or, if not
                          returned to the Estate of the Decedent in that manner, treated as an advancement
                          toward the future distributions due that party under this Agreement. Any non.cash
                          asset not so returned will be appraised by an independent appraiser, and the fair
                          market value determined by the appraiser shall be the amount of the advancement.
                          An.y tax liability created by returning the property to Bert's Estate, chargeable to
                          any party, shall be paid by Bert's Estate, which will indemnify such Party for such
                          liability

                  D.      Notwithstanding any other provision or provisions of this Agreement, the Parties
                          agree that they ba.ve reviewed the Orders and Accountings from all the
                          Guardianship Proceedings, and that no proceeds accounted for as a part of those
                          proceeding or used for the maintenance and support of Kathryn during the
                          pendency of those proceedings are required to be disclosed or conveyed to
                          Decedent's estate as a part of this Agreement.

         3.12    Administration      ofDe~edent's     Estate. Kenneth Vern Gibbs, as Independent Executor of
                 the Decedent's Estate, will have sole authority over and responsibility for the
                 administration of the Decedent's e!ltate including, but not limited to, the preparation and
                 filing of any of Decedent's income and gift tax returns, all death tax returns and 'all
                 fiduciary income tax retums, as may be due, and the collection and distribution of the
                 assets of the Decedent.

                 Kem1eth Vern Gibbs, as Independent Executor of the Decedent's Estate represents that he
                 will properly file all returns and provide for the payment of any related taxes. All Parties
                 hereby agree to INDEMNIFY, DEFEND and HOLD HARW...ESS, the Independent
                 Executor from any and all liability (save and except for liability arising out of negligent
                 act11 or breach of fiduciary duties), transferor, transferee or otherwise, (i) relating to his
                 serving as personal representative of Decedent's Estate, including 3Jly and all past, cu:rrent
                 or future federal or state income, gift or death taxes, and any related interest and penalties
                 whjeh may be claimed, or assessedl relating to Decedent's Estate, (ii) relating to any and
                 all past, current oJ: future federal .or state income, gift or death taxes, including any
                 interest, and penalties, imposed by reason of the distributions provided for in this
                 Agreement, and (iii) arising from all claims, costs, expenses, including but not limited to
                 attorney's fees and expenses, accountant fees and expenses, experts, litigation costs and
                 bond premiums, relating to any attempt by the Internal Revenue Service or other persons
                 or entities to assess, collect or enforce any claims, demands, assessments or judgments
                 against the Estates of the Decedent and/or Ward, or their personal representatives, for
                 past, current or future federal or state income, gift or estate taxes, and any related penalties
                 and interest. Any past income taxes, penaltiei, and interest will be borne by Bert's
                 Estate, unless it is shown that the income was attributable to a separate estate asset of
                 Kathryn, in which event the tax liability will be apportioned.

                        All parties acknowledge and agree that the Independent Executor has filed an
                 Estate Tax Return for the Decedent, along with an application for discharge from personal

        ~ Y Sli."'l'TL£.MENT AGREEMY.NT • Pllie lti
      /euiGibbs'JTSA 8'1 S'OU.nal

517
                  liability fo:r: the Estate's tax obligations, pursuant to section 2204(a) of the Internal
                  Revenue Code, more than 9 months ago.

         3.13     Administration of Ward's Estate. Kip Hughes Gibbs, as Independent Executor of the
                  Ward's Estate, will have sole authority over and responsibility for the administration of
                  the Ward's estate including, but not limited to, the preparation and filing of any of Ward's
                  income and gift tax returns, all death tax returns and all fiduciary income tax returns, as
                  maybe due, and the collection and distribution ofthe as~ets of the Ward.

                  Kip Hughes Gibbs, as Independent Executor of the Ward's Estate represents that he will
                  properly file all returns and provido for the payment of any related taxes. All Parties
                  hereby agree to INDEMN1FY, DEFEND and HOLD HARMLESS, the Independent
                  Executor from any and all liability (save and except for liability arising out of negligent
                  acts or breach of fiduciary duties), transferor, transferee or othelWis~ (i) relating to his
                  serving as personal representative ofWard•s Estate, including any and all past. current or
                 futl.lre federal or state income, gift or death taxes, and any related interest and penalties
                 which may be claimedt or assessed, relating to Ward•s Estate, (ii) relating to any and all
                 past, current or .future federal or state income, gift or death taxes, including any interest,
                 and penalties, imposed by reason of the distributions provided for in this Agreement, a11d
                 (ill) arising from all claims, costs, expenses, including but not limited to attorney's fees
                 and expenses, accountant fees and expenses; experts, litigation costs and bond premiums,
                 relating to any attempt by the Inteinal Revenue Service or other persons or entities to
                 assess, collect or enforce any claims, demands, aasessw.ents or judgments against f4e
                 Estates of the Decedent and/or Wa.td, or their personal representatives. for past, CUll'ent or
                 future federal or state income, gift or estate taxes, and any related penalties and interest.
                 .Any past income taxes, penalties, and interest will be borne by Ward's Estate prior to
                 distribution of Ward's Estate.

         3.14    Administr@iign and DtstributiQn       Qf   Estate As§ets. The Parties agree that all of the
                 Decedent's property, being all real and personal property the Decedent ha.d an interest in
                 or claim to at the time of his death, and all of the Ward's property, being all real and
                 personal property the Ward had an interest in or claim to at the time of the Effective Date
                 of this Agreement, including but not limited to her Separate Property interests, her interest
                 in the Houseworth Trusts and her Community Property interests, shall pass subject to the
                 terms of this Agreement. The Decedent's and Ward's Estate's shall be administered and
                 distributed as follows:

                 A.       Payment ~f Debts and Expepses of Decedent's Bstate. All of the Decedent's
                          legally enforceable debts~ funeral expenses, expenses of the administration, and all
                          federal and state estate, inheritance and succession taxes (except any
                          generation-skipping tax imposed by Section 2601 of the Internal Revenue Code or
                          similar provision of any state law), including interest and penalties thereon,
                          imposed upon the Decedent's estate or any beneficiary thereof by reason of the
                          Decedent's death, including the portion of any such tax as is attributable to the
                          proceeds of policies of insurance on Decedent's life or other property 11.0t

       ~}__"ll SJ1.TILEMENT AGRE£1\oW!T- Pap: 17
      r~ibba'I'SA 8'1$'08-flnol
                                                                                      Jl.ftp
518                                                                                       Page
     constituting apart of Decedent's probate estate, be paid out of Decedent's residuary
     estate, without reimbmsement from any person. The above direction with respect
     to payment of debts shall not be construed to require the payment of any debt
     before it is due, and Decedent's executor is specifically given the authority to pay
     and keep C\UTent out of funds in the Estate any debt or charge existing at the time
     of Decedent's death, including any mortgage and/or loan which may in fact exist.
     Similarly, Decedent's executor shall have the right and power to incur
     indebtedness and to borrow money for the purpose of paying any or all of the
     aforesaid debts, expenses and taxes. No policy loan against a policy of life
     insurance owned by Decedent 011 Decedent's life or on the life of any other person
     shall be treated as a debt to be paid out of the residue of Decedent's estate but
     rather any such policy loan against a policy of life insurance owned by Decedent
     on Decedent's life shall be paid out of the proceeds of the policy and any policy of
     life insurance owned by Decedent on the life of any other person shall be
     distributed to the person or entity entitled thereto subject to any such policy loan..

B.   Pa)'lllent of Debts and Exncnses of Ward's Esta~· All of the Ward's legally
      enforceable debts, funeral expenses, expenses of t.lte administration, and all federal
      and state estate, inheritance and succession taxes (eXCePt any generation-skipping
     tax imposed by Section 2601 of the Intemal Revenue Code or similar provision of
      any state law)~ including interest and penalties thereon, imposed upon the Ward's
      estate or any beneficiary thereof by reason of the Ward!s death~ including the
     portion of any such tax as is attributable to the proceeds of policies of insurance on
     Ward's life or other property not constituting a part of Ward's probate estate. be
     paid out ofWard•s residuary estate, without reimbursement fro.rn any person. The
     above direction with respect to payment of debts shall not be construed to require
     the payment of any·debt before it is due, and Ward's executor is specifically given
     the authority to pay and keep cunent out of funds in the Estate any debt or charge
     existing at the time of Ward's death, including any mortgage and/or loan which
     may in fact exist. Similarly, Ward's executor shall have the right and power to
     incur indebtedness and to borrow money for the puxpose of paying any or all of the
     aforesaid debts, expenses and taxes. No policy loan against a policy of life
     insurance owned by Ward on Ward's life or on the life of any other person shall be
     treated as a debt to be paid out of the residue ofWard's estate but rather any such
     policy loan against a policy of life insurance owned by Ward on Ward's life shall
     be paid out of the proceeds of the policy and any policy of life insurance OYilled by
     Ward on the life of any other person shall be distributed to the person or entity
     entitled thereto subject to any such policy loan.

     Notwithstanding the fol'egoing, if any tax, including interest and penalties thereon,
     is im.posed on property includable in Ward's gross estate by reason of Section
     2044 of the Internal Revenue Code or a similar provision of any state law. the
     Parties direct the Executor to recover the tax attributable to tha.t property from the
     person or entity in possession of or receiving the property as provided in Section
     2207A of the Internal Revenue Code or a similar provision of state law. In any
     event, all Parties authorize payment of any such tax as soon as practicable in order




·-·---. -       ........ ,_, __.,_ ........... ~-~---·--·---·
                                           >

                                  .·.




                     to avoid further charge of interest or penalties on any owed taxes.

              C.     DiyjsiQP ofPersona1 Eropertv of Decedent's Estate. All of Decedent's household
                     :furniture and furnishings, books, pictures, objects of art~ silverware, jewelry,
                     clothing and other such personal effects (save and except for automobiles),
                     Decedent may have owned at the time of Decedent's death, are to be owned by the
                     child and/or spouse currently in possession of the same.

              D.     Division ofPersonal Prol}erty of Ward's Estate .. Upon the death ofKathryn all of
                     her personal items and effects shall be distributed equally to the four Gibbs
                     Children in accordance with the terms of this provision. The Executor and/or
                     Trustee shall work with the four Gibbs Children to come to an agreement about the
                     remaining personal items and effects that each Gibbs Child receives, save and
                     except for the following specific items of personal property. which are to be
                     distributed to the person designated:

                     Description o{Jtem                                            Name Pi Child
                     "Candy's Hope Chest" (presently in the·                               Candy
                     possession of Kathryn H. Gibbs)

                     Grandmother Gtbbs Bedroom Suite (not in                               Ken
                     the possession of Kathryn H. Gibbs, Kip Gibbs,
                     and/or Sandy Gibbs)

                     If the Executor/Trustee and the four Gibbs Children cannot reach an agreement
                     with regard to the remaining items, the personal items and effects shall be divided
                     pursuant to the following procedure:

                     Division Procedure. After twenty days (20) notice, by certified mail, to the Four
                     Gibbs Children, at their last known address, regarding the place and time of this
                     division of this property, there shall be a drawing held to determine the order each
                     of the four Gibbs Children shall choose apersonal item or effect. The order will
                     apply to the "first round'' of choosing personal items. The order shall be reversed
                     with the fourth child in the first round, picking first in the second round. The
                     "third round" will again be reversed back to the order of the "first round." This
                     a.ltemating order shall be continued '.lD.til all of the personal items and effects are
                     divvied up among the four Gibbs Children. The four Gibbs Children hereby
                     specifically agree that this procedure is fair and shall be implemented in the event
                     no agreement cau be reached and the division shall stand and be binding upon all
                     of the four Gibbs Children, regardless of the items or value of the items that eat:h
                     Gibbs Child may ultimately receive. Each of the four Gibbs Children expl\citly
                     agree that all complaint~ objection or cause of action in relation to this procedure
                     or its ultimate result is hereby waived and forever released and that no cause of
                     action shall exist for any discrepancy in the value or items actually received by any
                     of the four Gibbs Children, respectively. The items each ;fecei.ves, per this
                     procedure, shall be theirs for all time, outright, free of any encumbrance or claim

        ~y SETTLEMENT AGRIEMENT ·Pap !!I
      "':!:7'.'/3ibbsWSA 8'151>8-finll

s2o            ·                            Ku,       e~IJ.)
'   '

                          ,·.                                       ~   ·.,




             of any other Party.

             If there i's any personal item or effect that are not picked by one of the Four Gibbs
             Children than that item or effect shall be abandoned by the Executor.

        E.   Time for Distribution of Decedent's Estate. The Parties agree that the Executor of
             Decedent's Estate shall use diligence in the administration of Bert's Estate and that
             he shall, make distributions as soon as possible in accordance with thii agreement,
             that he shall make all distributions equally and at the same time; to all
             beneficiaries when applicable and that he shall do the following:

             1.     Distribute to the Kathryn H. Gibbs 867 Management Trust the sum of
                    $1,000,000.00 within 30 days of entry of th,e Final Order in Cause No.
                    2004-11103-16, styled "J-W Operating Company v. K.atb.tyn. G. Gibbs, et
                    al.," filed in the 16111 Judicial District Court of Denton County, Texas, or
                    within 10 days of creation of the 867 MaDagem.c:nt Trust;      ·

             2.     Distribute to the Kathryn H. Gibbs 867 Management Trust the undivided
                    one-fourth 114 interest in the surface estate only of the Gibb,s Homeplace
                    (as described in Exhibit "B") within 30 days from the date this FSA is
                    approved by a Statutory Probate Court, by Special Warranty Deed or
                    within 10 days from the date the 867 Management Trust is created;
             3.     In exchange for an agreement of indemnification of the Executor of
                    Decedent's Estate for any claims, the Parties authorize and agree that the
                    Executor is authorized and obligated to make partial distributions to the
                    parties in the shares and prQportions agreed to abpve of the existing cash
                    assets only of the estate (save and except for a minimum cash reserve of
                    $200,000 to be retained and maintained by the Executor to be used if
                    necessary for any ongoing administrative expenses pending :fin8.1
                    distribution of the estate).

             4.     Additionally, the Executor is authorized to distribute any mineral interests
                    to the parties upon resolving any known or anticipated issues with third
                    parties concerning the same.

             5.     It is the desire and agreement of the Parties that the Executor of the Estate
                    is authorized to liquidate and sell all real property assets. save and except
                    for any mineral interests in such properties, with the Parties agreeing that
                    all mineral interests are to be reserved and retained unless otherwise agreed
                    to in writing by all the Parties.

             6.     Unless otherwise agreed to by all Parties, the final distribution of Bert's
                    Estate shall be within 60 days of the Executor's completion of (1) the full
                    and complete liquidation of all surf~ce real property estate assets; and (2)
                    either the receipt of the Estate Tax Closing Letter from the Internal
                    Revenue Service, or the numing of the limitations period for any additional




---------- ·---·----·
                                                                                 ........




                               tax   assessments.
                       7.      When the Executor makes either a partial and/or final distribution. the
                               Parties agree to execute an instrwnent entitled Receipt. which is to be
                               executed and returned by each party in exchange for the distribution. to
                               them of their share of the estate as established by this agreement.

                       8.      Further, all Parties agree that so long as any asset of the Estate remains in
                               the possession and control oftbe Executor, that the Estate and the Executor
                               shall hold such property in trust and for the benefit of each party to the
                               extent of their interests therein. Each trust created hereunder is a
                               spendthrift trust. Accordingly, no party/beneficiary shall have the power to
                               anticipate, encumber, or transfer his interest in any trust estate in any
                               manner, save and except for any transfers and/or assignments entered into
                               by the various Parties with their respective attorneys as of the effective date
                               of this FSA. No part of any trust estate shall be liable for or charged with
                               any debts, contracts, ·liabilities, or torts of a beneficia:cy or subject to seiz~e
                               or other process by any creditor of a beneficiary. Each Party has willingly
                               and voluntarily waived any such rights and have agreed to this spendthrift
                               provision.

               F.      Time fQr Distri'b,u.tion of Ward's state. The Parties ·agree that the Executor of
                       Ward's Estate shalt use diligence in the administration of Ward's Estate and that
                       he shall:

                       1.      Distribute all of Ward's Estate pursuant to this FSA after approval of the
                               Inventory., Appraisement and List of Claims has been entered, the Notice to
                               Creditors filed, paytnent of debts, and any other administration necessary
                               to close all of the trusts, any filing of tax returns, and if applicable, receipt
                               of the closing letter from the 1RS,

                       2.      Nothing in this FSA shall preclude tho Executor of Ward's Estate from
                               making partial distributions from the Ward's Estate.

                       3.      When the Executor makes either a partial andlot final distribution, the
                               Parties agree to execute an instrument entitled Receipt, which is to be
                               executed and returned by eaah party in exchange for the distribution to
                               them of their share of the estate as established by this agreement.

                       4.     Further, all Parties agree that so long as any asset of the Estate remains in
                              the possession and control of the Executor, that the Estate and the Executor
                              shall hold such property in trust and for the benefit of each party to the
                              extent of their interests therein. Each trust created hereunder is a
                              spendthrift trust. Accordingly1 no party/beneficiary shall have the power to
                              anticipate, encumber, or transfer his interest in any trust estate in any
                              manner, save and except for any transfers and/or assignments entered into

      ~y Sl't'tl.EMEJI!T AGREEMENT· l'lll6 21
  ~\,GibbJ\FSA I'UViHIIIll



522                                          ~u'                                             Page
                     by the various Parties with their respective attorneys as of the effective date
                     of this FSA. 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. Each :Party bas· willingly
                     and voluntarily waived any such rights and have agreed to this spendthrift
                     provision.

3.15   AttQrn~y's Fm Affecting Distributions.

       A.    Attorney's fees of Ken, Candy and Howard Kirk. Parties acknowledge and
             agree that Ken. Candy and Howard have incurred with their attorneys, attomers
             fees and expenses based upon a contingency fee contract of SO% of the amounts
             recovered and distributed to them as beneficiaries of the Estates of the Decedent
             and the Ward. The Parties agree that all attorneys' fees paid or owed by Ken,
             Cen.dy and Howard Kirk snall be bome by and shall be the. sole obligation of Ken,
             Candy and Howard Kirk and shall be paid solely by them, and Kip shall never be
             obligated to pay said attorneys' fees and expenses in any way. These Attorneys
             fees will only be paid out of the percentage share allocated to Ken, Candy and
             Howard at the time of actual distribution to them. All partie$ 5tipulate and agree
             tbat such attorney's fees have been essential to the proper settlement of the Estates.
             Further, the amotmt of the Attorney Fees payable to the Attorneys representing
             Ken, Candy, and Howard Kirk, will proportionately reduce each of their fractional
             shares, when calculating each of their shares of Bert's and Kathryn's Estates for
             purposes of both the calculation of Estate and Inheritance Taxes, and for the
             calculation of partial and final distributions to each of them.

             The Executor (as hereinafter provided) may at his election, (1) add the amount of
             the Attorney Fees paid to the Attorneys for Ken, Candy, and Howard Kirk, as a
             part of the 11 Attorney Fees" to be deducted on Schedule 1, l'art B, Line 2-Attomey
             Fees,· when filing an Estate Tax Return, for the reason that the services provided
             by the attorneys have benefitted the general estate in reaching a fair and correct
             distribution of the Estate assets, or (2) use such fees as an income tax deduction.

             Further all parties acknowledge that had this settlement agreement not been
             entered into by all parties, the Counsel for Ken, Candy, and Howard Kirk were
             prepared to defend the Will of the Decedent previously adlllitted to probate. would
             have had to and were prepared to pursue the Proceedings and claims on behalf of
             the Estate against other persons or etltities for the recovery of property and would
             have been entitled under the Texas Probate Code to recover attorney fees :from the
             Estate, if the Court was to determine that the Will was offered and defended iD
             good faith or that the claims were properly and correctly pursued.

       B.    At.Wrneys Fees of Kip, The Parties acknowledge and agree that Kip, has both
             individually and in his capacity as Temporary Guardian, and Permanent Guardian




                                                                                  Page
                            incurred attorney's fees and expenses. These fees and expenses are now based
                            upon a contingency fee arrangement of a percentage of the amounts re~overed and
                            distributed to him as a benefi.ciacy of the Estates of the Decedent and the Ward.
                            The Parties agree that all attorneys' fees paid and owed by Kip individually and in
                            his capacity as Tempotary Guardian, and Permanent Guardian, shall be bome by
                            and shall be the sole obligation of Kip, and shall be paid solely by him out of his
                            share when his share is distributed to him, and Ken, Candy attd Howard Kirk shall
                            never be. obligated to pay said attorneys' fees and expenses in any way. All parties
                            stipulate and agree that such attorney's fees have been essential to the proper
                            settlement of the Estates.

                            Further, Kip agrees to be solely responsible for and will indemnifY the Estates fo:r
                            any attorney's fees and expenses that may be claimed to be due, unpaid, and
                            outstanding by David Bousehor, Kevin Spencer, and Ieff Springer as a part of the
                            Guardianship and appellate proceedings. Ftuther, David Bouschor, Kevin
                            Spencer, and Jeff Springer~ acknowledge and agree by their approval of this FSA,
                            that they Will look solely to Kip's distributive share of the Estates to satisfY any
                            such claims for attorney's fees.

                            Further, the amount of the Attorney Fees payable to the Attorneys representing
                           Kip will proportionately reduce his fractional share, when calculating his share of
                           Bert's and Kathryn's Estates for purposes of both the calculation of Estate and
                           Inheritance Taxes, and for the calculation of partial and final distributions to him.

                           Unless otherwise previously taken as an income tax deduction, the Executor (as
                           hereinafter provided) may add the amount of the Attorney Fees previously paid to
                           the Attorneys for Kip, Sandy, Kathryn and/or the T111sts, as a part of the "Attorney
                           rees 11 to be deducted on Schedule J, Part B, Line Z~Attomey Fees, if necessary, or
                           use such amounts as well as any contingency attorney's fees paid by Kip out of his
                           distributive shan~ if necessary when dealing with any Estate Tax and/or Income
                           Tax Return. issues for Bert's Estate, for the reason that the services provided by the
                           attorneys have benefitted the general estate of Bert in reaching a fair and correct
                           distribution of the Estate assots.

                           Further all parties acknowledge that had this Family Settlement Agreement not
                           been entered into by all parties, the Counsel for Kip were prepared to offer and
                           defend the Will of the Ward, would have had to and were prepared to pursue the
                           Proceediltgs and claims on behalf of the Estate against other persons or entities for
                           the recovery of property and would have been entitled under the Texas Probate
                           Code to recover attorney fees from the Estate, if the Court was to determine that
                           the Will was offered and defended in good faith or that the claims were properly
                           and correctly pursued.

               C.          Apportionment of Estate & Inheritance. TaJ.es. Any Federal Estate Tax or State


    ./..,"!f!,,LY SE'I'l1.EMEJ'l'r AGREEMiN'f- Pa&e 23
   ~~\Gibln'IFSA     B'l S'OB-Iinal




·--·-· ···--------------
                                                                                               ..   •.




                                       of Texas Inheritance Tax due as the result of the death of either the Decedent or
                                       the Ward, will be paid out of the net estate to be distributed to the children-
                                       beneficiaries, unless otherwise provided for herein. Each of the Children's share of
                                       the Net Estate will be responsible on a proportionate basis for their respective
                                       share of Federal Estate Tax, and State of Texas Inheritance Tax. As a result, each
                                       Beneficiary/Child's share to be distributed upon the completion of the
                                       Adn.'tinistration of the Estates, will be further reduced by the applicable amount of
                                       taxes attributable to their share of the net estate.

             3.16        A2reemeat 'litb Respect t9 !Juardiansbip.
                         A.            Access to Kathryn. The Parties acknowledge that each of them would like to
                                       maintain and/or rekindle a relationship with their mother, Kathryn Gibbs. but each
                                       hereby agree that the decision to allow visitation or access to Kathryn Gibbs shall
                                       be subject to the decision of and made only by Kathryn Gibbs iu the event that she
                                       should be detennined to be competent to make such dt!lcisions.

                                      Each Gibbs Child hereby agrees that he or she will respect and follow Kathryn's
                                      desire and decision to maintain or rekindle any relationship with any of the Gibbs
                                      Children and that she shall not be subjected to any sort of harassment, via phone,
                                      e~mail, letter writing or any other type of contact, once her expressed desire
                                      denying or against such relationship or contact has been commUllicated by her to
                                      them, either verbally or in writing. The Parties also agree that once Kathryn has
                                      conununicated her desire of no further contact or communication, and thereafter
                                      fwther contact or communication continues, whether or not it is to the point of
                                      hara.smnent, that Kathryn may seek protection from such contact, communication
                                      or harassment from a court of law. The cost of any such action, including
                                      attorney's fees and expenses, shall be borne and paid for by the party making
                                      co11tact and against whom the action for protection is filed, if protection is granted.

                         B.           Guardians of Kathryn's Person. In the event that the psychiatric evaluation of
                                      Kathryn concludes that there is a need for a Guardian of her Person, th6l:l., in that
                                      event, the Parties agree to make a. joint application to appoint a third party licenced
                                      Professional Guardian in the Nueces County, Texas area with this third party being
                                      picked by Kathryn's primary care Physician, BB the Guardian of her Person. In the
                                      event the first third party cannot or wil1110t serve or continue to setve, then, in that
                                      event,- Kathryn's then primary care Physician shall designate the alternate or
                                      successor Guardian of 1he Person. No Guardian of the Person of Kathryn will
                                      interfere with the reasonable visitation of any Party with Kathryn.

                         C.           Guardian of Kathryn's Estate. The Parties agree that any temporary
                                      guardianship proceedings ended on December 6, 2004 with the signing of the
                                      Order Approving Inventory and Accounting of Temporary Guardianship.


       ..1-'-Mn..Y SETrLEMENT AGREEMENT- Pasm 24
      '-...!::J""un\r:Jw.,.,~Sf. 8'1S'08-6n•l

525                                                         K~t
                          The Parties agree that if the psychiatric evaluatio:n of Kathryn determines that she
                          is competent to manage both her person and her financial affairs, then, at this time
                          there is no necessity for a court with proper jurisdiction to appoint either a Limited
                          or Permanent Guardianship of the Estate of Kathryn.

                          In the event that it is determined by the psychiatric evaluation that Kat.hryn is not
                          competent to manage her Estate, thelit in that event, the Parties agree that they will
                          file a joint application to appoint Jimmy Walker as Guardian of Kathryn's Estate,
                          as previously set forth herein. Additionally the Parties will also seek such
                          appointment if it is later determined that there is a necessity for a Guardianship of
                          th~ Ward's Estate, with the specific authority to transfer any assets of Kathryn's
                          guardianship estate to the 867 Management Trust, which has been created hercin.

                 D.       FiDal Accounting of Temporary Co-Guardians of Kathryn's Estate. All
                         Parties ratifY and approve of the Denton County Probate Court's Inventory and
                         Accounting of Temporary Co-Guardianship, Order Approving Inventory and
                         Accounting of Temporary Co-Guardianship, and discharge and release frolXl
                         liability of Kip and Sandy as Temporary Co-Guardians aud as Permanent Co"
                          Guardians. The Parties acknowledge that there has been monthly distributions
                         directly to or directly for Kathryn's care or for Kathryn's monthly living
                         expenditures, from the Houseworth Trust and the Kathryn Gibbs 'Trwt. Kip and
                         Sandy Gibbs will not have to account for the actual expenditures made by or for
                         Katlu'yn from these Trusts. The Parties agree that no further tees will be paid to
                         the Temporary Co-Guardians for their services.

                 E.      Existing Bond. All parties agree that the bond presently existing in the Probate
                         Court of Denton County, Texas, pursuant to the Order Converting Temporary
                         Guardianship of the Estate to Permanent Guardianship of the Estate, signed on
                         April 27t 2004, posted by Kip and Sandy Gibbs in the amount of One Hundred
                         Thousand and no/100 Dollars ($100,000.00) shall be released and that Kip and
                         Sandy Gibbs, and their attorneys, employees of their attorneys, and/or other of
                         their representatives, are released and discharged from any fiuther or additional
                         accounting or repayment of any then ordered fees or expenses. All parties agree to
                         execute whatever documents are necessary to obtain whatever documents the Bond
                         Company requires in order to get Kip and Sandy Gibbs and Western Surety
                         Company released and discharged from all liability under said Bond #15498959.

        3.17     Agreement with Respect to the Mary L. Houseworth Revocable. Trust and tbe
                 Kathryn Houseworth Gibbs Irrevocable Trust.

                 A.      Accountings. The Trustees of the Houseworth Trust and the Katbryn Gibbs Trust
                         shall prepare and distribute/disclose to Kathryn and each of the four Gibbs
                         Children an accounting complying with the statutory fonnat for the periods
                         January 1. 1998 through the present. If previous accountings have been prepared

       J,."!!fL.._Y SETTLEMENT ...GREEMENT. Pase 25
      ~ibbiiFSA e'1S'O$·titl~1


526                                             t<u b ~w
                                           ···----·-·---...... ___ _____
                                                                  ,
                                                                                         .t
                           by any prior Trustee for the periods addressed, copies of same shall be provided to
                           Kathryn and each of the four Gibbs Children, unless any ofthem notify the current
                           Trustee that they have already received such accountings and do not require an
                           additional one.

                  B.       No Liability for Y2K. The Parties agree that no Party shall be held responsible or
                           liable for the return or account of any funds removed or taken from any trust, any
                           loss in value on the sale of the gold coins and/or junk silver, and/or any item,
                           ration, property purchased with funds removed from one or both of the Trusts at
                           the time the sale was ordered or at the time the return of such items was ordered
                           and that no Party shall be held responsible or liable for any loss in value on the
                           sale of the gold coins and/or junk silver and/or any item, ration, property
                           purchased with funds removed from one or both of the Tr:usts based upon any past
                           value since the sale or return was ordered or based upon current value of said
                           items. No party shall be held responsible or liable for any lack of, or failure to
                           pursue or recover any funds, assets1 or value removed from the Trusts. It is
                           expressly provided. how~er, that neither Wells Fargo Bank and/or First State
                           :Sank of Denton, and/or any predecessor trustee, in their capacities as trustees of
                           either the Houseworth Trust and/or the Kathryn Gibbs Trust, are to be released
                           from any liability by this provision.

                  C.      Contractual Modification of llouseworth & Kathryn Gibbs Trusts. The
                          Parties hereby agree any provision in either the Houseworth Trust and/or the
                          Kathryn Gibbs Tmst that allows Kathryn or any beneficiary or a collection thereof
                          to take action to request or order either Trustee to make distribution of principal
                          from either Trust is hereby contractually eliminated from those Trusts and will not,
                          and cannot, ever be utilized again by any Party for that stated pwpose, pursuant to
                          Tex. Property Code §112.Q54(a)(5)(B) at a minimum.

                 D.       Successor Trustees. In the event the existing Trustee of the Houseworth Trust,
                          the Kathryn Gibbs Trust, or the contemplated Kathryn Houseworth Gibbs 867
                          Management Trust who is or will be Compass Bank, should resign, then, in that
                          event, the Parties agree that the successor Trustee of the Houseworth Trust, the
                          Kathryn Gibbs Trust and the contemplated Kathryn Houseworth Gibbs 867
                          Management Trust, shall be the Frost B8l'lk. The trustee herein above named or
                          any successor trustee rnay at any time resign upon giving sixty (60) days written
                          notice of such resignation (unless such notice is waived in writing by all persons
                          entitled thereto) to the Probate Court where the Kathryn Houseworth Gibbs 867
                          Managetnent Trost was created, the Guardian of the Estate if still acting in said
                          position, or if not, then to the then acting Guardian of the Person. In the event any
                          trustee serving hereunder shall resign, be removed, cease or fail for any reason to
                          serve as trustee, such successor trustee shall be appointed by the Denton County
                          Probate Court pursuant to the tenns of this Agreement.


         1\'AMP..Y SETtLEMI.NJ' AGR&EM.ENT • Page 26
      ~\(Jib~ SA 8'15'08-flnlll
527                                                ~u~
                                                                                           Page_ ;2"'
                                                                               ~.

                                                                                    ·,




             E.      The Parties agree that the Final Judgment dated January 20, 2005, in Cause
                     Number GA 2001-196~021n the Probate Court of Denton County, Texas, is to be
                     vacated and is to be treated as if the final judgml!:lnt is null, void, and nonexistent.
                     Further the parties agree that the decision of the Second Court of Appeals iti Fort
                     Worth, Texas, in Cause Number 02-05-00143-CV, in which the Court of Appeals
                     reversed and rendered the decision of the Probate Court, is the final and non~
                     appealable Order in the proceeding, and from which all Parties agree that they will
                     not pursue any further appeal, and will upon the effective date of this Agreement,
                     dismiss any pending motions for rehearing or petitions for review, and rt'lquest that
                     a mandate of the Court of Appeals be issued.

             F.     The Parties agree that the trusts are to, be administered with the agreement and
                    understanding that the Ward has no power or authority over the assets or the
                    administration of the assets of tb.e trust estates which would result in such assets
                    being made a part of the Ward's Estate for Federal Estate Tax purposes at the time
                    of her death. and that in the event that there are any rights or powers contained in
                    the tcmns and provisions of either truSt instrument, then, in that event. the
                    execution of this Agreement by the Ward audlor her representatives, does hereby
                    result in an Agreement by the Parties that the trusts cannot and are not to be
                    construed in such a manner as to include any assets in the Ward's estate for Federal
                    Estate Tax purposes, With such rights by admission of the Ward, to be deemed as
                    never having existed from the inception of each trust.

             G.     Any distributions from the Houseworth Trust, the Kathryn Gibbs Trust, or the 867
                    Management Trust, to the Ward are to be in the sole discretion of the Trustee,
                    pursuant to their respective terms and without threats or interference from the
                    Parties.

      3.18   Provisions Relating to Personal Representatives and Attorneys
             Estate of Deeedent. The Parties agree that Howard Kirk Gibbs has previously
             relinquished his right to serve as the independent executor without bond of the Estate of
             the Decedent and is hereby forever contractually disqualified from serving and shall never
             seek reappointment. Kenneth Vem Gibbs will administer the assets of the Estate pursuant
             to the terms and provisions of this Agreement.

             Estates of Decedent and Ward          The Parties agree that no action shall be had in any
             court respecting the settlement of the Decedent's or Ward's estate other than to file tlu!S
             Family Settlement Agreement as a part of the probate records and, if required, to make,
             return and record an inventory and ~ppraisement oftb~ Decedent's and Ward>s estate and
             list of claims. During the administration of the Decedent's or Ward's Estate, the Executor
             shall have, in extension and not in limitation of the powers given by law or the tenns of
             this Family Settlement Agreement, all of the administrative powers and powers of sale
             granted to a trustee under the Texas Trust Act (or its successor statute governing the
             powers and respons1bilities of n'Ustees), such powers to be exercised without court
             supervision or control.




528                                                                                       Page
                                                                               .....




                 The executor shall have full power and authority to make any and all estate) inheritance
                 and income tax elections available to the oxecutor including specifically (i) the date and
                 option, alternative or method which should be selected for the valuation of property in the
                 Decedent's or Ward's gross estate for federal and state estate and inheritance tax purposes
                 and the payment of all such taxes, (ii) whether a deduction shall be taken as an income tax
                 deduction or an estate tax deduction, and (iii) the election to extend the time for the
                 payment. of federal and state estate and inheritance taxes and the election to pay any such
                 W: in installments. The executor shall incur no liability to . any belleficiary of the
                 Decedent's or Ward's estate on account of making any such electio~ regardless of the fact
                 that any federal or state estate, inheritance or income tax imposed on the Decedent's or
                 Ward's estate is thereby increased or that there is a change in the proportion in which any
                 beneficiary shares in the Decedent's or Ward's estate. The executor's decisions with
                 respect to such matters shall be binding and conclusive upon all eoncerned. No
                 compensating adjustments between income or principal or in the amount of any bequest or
                 devise hereunder shall be made as a result of any such decision.

                 The Parties authorize the executor to distribute the Decedent's and Ward's Estate,
                 respectively, in whole or in part at such time or times as it deems advisable, but in
                 accordance with the terms of this FSA and the Executor is authorized to make such
                 distribution in cash, or in kind. or partly in cash and partly in kind. The Executor is
                 further authorized to distribute the Decedent's or Ward'& estate subject to any and all
                 indebtedness incurred by the Decedent or Ward. or by the Executor, which in the opinion
                 of the Executor need not first be paid, and subject to any or all mortgages, deeds of trust
                 or other liens created by the Decedent and/or the Ward or by the Executor, except as
                 otherwise provided by this Agreement.

                If any ~orporate executor should, before or after qualification, change its n1m1e) be
                reorganized, merged or consolidatod with another corporation. or assign its trust functions
                 to another coq>oration, the resulting corporation which succeeds to its fiduciary business
                 shall become an executor here\Ulder or be eligible for appointment as executor, as the case
                 maybe.

                Personal Representative Fees. For their services as executor hereunder, the executor of
                either the Decedenfs or Ward's estate shall be entitled to reasonable fees cotnmensurate
                with its duties and responsibilities, taking into account the value and nature of the
                Decedent•s and the Ward's estates and the time and work involved. The Personal
                Representative Fees shall be deterntined by application of the statutory fee guidelines for
                Executors in Section 241. The Parties agree that an hourly fee of $75.00 per holll' will be
                substituted in all instances where either statute calls for a commission of 5%., and shall
                never exceed 2% of the va.tue of the gross estate, regardless of the statutory guidelines.

                Certain Fiduciary Arrangements with Scott Pelley and/or Rickey J. Brantley. All
                parties agree that their relationship with Scott Pelley and/or Rickey J. Brantley, as the
                Attorneys for the Estate are contractual in nature only, and is to be governed and bound

       ~r;~ SE'M'L.EMENT AGREEJ'ol£Nl'- Pagt 28
      ,~VJtr.bi'Jl'SA 8'15'0i-flnol


s29                                               K~'                                   Page
                               by the terms and provisions of this Agieement only. Further such parties expressly state
                               that any fiduciary relationship with Scott Pelley and/or Rickey J. Brantley, which would
                               ordinarily arise out of their assumption of the role of Attorneys for the Estate, is hereby
                               expressly waived for all purposes, with each party, acknowledging and contractually
                               agreeing that no fiduciary relationship will be claimed to exist, or in the alternative any
                               fidnciary relationship which is created by the assumption by Scott Pelley and/or Rickey
                               J. Brantley of the role of Attorney of the Estate is hereby expressly waive~ with Scott
                               Pelley and/or Rickey J. Brantley being fully released from such fiduciary obligations to
                               any Parties in that capacity and for that purpose.

                               Additionally~ all parties expressly understand that Scott Pelley andlor Rickey J. Brantley
                               will continue to represent the interests of Ken, Candy, and Howard Kirk only, in these
                           probate proceedings, in the event that a necessity for such continued representation
                           should later arise, and each party, after having been advised of such continued
                           representation of Scott Pelley aad/or Rickey J. Brantley as attorney for Ken, Candy, and
                           Howard Kirk) expressly waives any right to claim that such rontinued representation
                           constitutes a conflict of interest, which would prevent Scott Pelley and/or Rickey J.
                          .B1·antley from their continued representation of Ken, Cmtdy, and Howard Kirk, should
                           the need arise, in these proceedings. All Parties acknowledge and agree that Scott Pelley
                           and/or Rickey J. Brantley have in the past and will continue to have a fiduciary
                           relationship in the futul'e with Ken, Candy, and Howard, based upon their continued
                           representation of them.

                           Further, the Parties agree that the consideration for waiving any conflict of interest and
                           for renunciating any potential claim of a fiduciary relationship, is the agreement of Scott
                           Pelley and/or Rickey J. Brantley to fulfill the role of Attorney of the Estate, for the
                           purpose of completing the administration of the Estate pursuant to the contractual tenns
                               ofthis agreement.

                           The Parties expressly state and ·agree that their only remedy against Scott Pelley and/or
                           Rickey J. Brantley, as attorney for the Estate, in that capacity and tbr that purpose would
                           be limited to remedies arising out of a breach of the terms of this contractual agreement.

                               The Parties hexflby waive any other types of claims which might ordinarily be available,
                               including, but not limited to claims for breach of what would ordinarily be a fiduciary
                               duty in that capacity and for that purpose.

         Certain Fjduclary :Relations with David S. Bouscbgr. II. Kevig Spencer and/or Jeff
         Sprinter. All parties agree t):w their relationship with David S. Bousch6r, Kevin Spencer and/or
         Jeff Springer, as the Attorneys for the Estates, Trustees and/or Guardian is contractual in nature
         only, and is to be governed and bound by the torms and provisions of this Agreement only.
         Further such parties expressly state that any fiduciary relationship with David S. Bouschor, Kevin
         Spencer and/or Jeff Springer~ which would ordinarily arise out of their assumption of tho role of
         Attorneys for the Estate, Trustee and/or Guardian is hex-eby expressly waived for all purposes,

         JI'AMILY SEITLEMENT h.GU£M£NT ·Page 29
  .   ~'f.iibb1liSA 8'iS'Ol-fiftal

530           ~   .... - N -   -.,._,,,__,   ...... ,   ~-·~   ....   '•••
                                                                                                                t<
                                                                             . . . . . , _ _ ,. _ _ _ . . _ . , , ,
                                                                                                                      v'
                                                                                                                      "•   I   '
                                                                                                                                   Page   .J ij
         with each party, acknowledging and contractually agreeing that no fiduciary relationship will be
         claimed to exist, or in the alternative any fiduciary relationship which is created by the
         assumption by David S. Bouschor, Kevin Spencer and/or Jeff Springer of the role of Attorney of
         the Estate is hereby expressly waived, with David S. Bouschor, Kevin Spencer and/or Jeff
         Springer being fully released from such fiduciary obligations to any Parties in those capacities
         and for those purposes.

        Additionally, all parties expressly understand that DavidS. Bouschor, Kevin Spencer and/or Jeff
        Springer will continue to represent the interests of Kip only, in these probate proceedings, in ~e
        event that a necessity for such continued representation should later arise, and each party, after
        having been advised 'of such continued representation of David S. Bouschor. Kevin Spencer
        and/or Jeff Springer as attorney for Kip, eXpressly waives any right to claim that such continued
        representation constitutes a conflict of interest. which would prevent David S. Bouschor, Kevin
        Spencer and/or Jeff Springer from their continued representation of Kip, should the need arise, in
        these proceedings.. All Parties aclmowledge and agree that David S. Bouschor, Kevin Spencer
        and/or Jeff Springer have in the past and will continue to have a fiduciary relationship in the
        future with Kip based upon their continued representation of him .

                .FUl'tber, the Parties agree that the consideration for waiving any conflict of interest and for
                 renunciating any potential claim of a fiduciary relationship, is the agreement of David S.
                 Bouschor, Kevin Spencer and/or Jeff Springer to fulfill the role of Attomey of the Estate,
                 Trustee or Guardian for the purpose of completing. the administration of the Estate, Trust
                 and Guardianship pursuant to the contractual terms of this agreement.

                 The Parties expressly state and agree that their only remedy against David S. Bouschor,
                 Kevin Spencer and/or Jeff Springer, aS attorney for the Estate, in that capacity and for. that
                 pUl'pose would be limited to remedies arising out of a breach of the terms of this
                 contractual agreement.                                                         ·

                 The Parties hereby waive any other types of claims which might ordinarily be available,
                 including. but not limited to claims for breach of what would ordinarily be a fiduciary
                 duty in th1t capacity and for that puxpose.

        3.19     Conveyance Documents. In order to effectuate the conveyance of all of Decedent's
                 and/or Ward's interests in the property passing pursuant to the terms of this Agreement
                 the Parties shall deliver to any other Parties all such requisite executed docwnent.ation,
                 deeds, bill of sales and stock transfers as may be necessary to complete the division of the
                 Decedent's and Ward's Estates in compliance with this Agreement. AU the Parties shall
                 also cooperate with each other al'ld any personal representatives and/01: trustees to
                 facilitate the delivery of any assets to any other Party under the tenns of this Agreement.

        3.20     Release. Each Party, for themselves and their lineal heirs, beneficiaries, assigns
                 representative, agents and descendants, hereby forever release and discharge each other
                 Party, individually, and in all capacities, and their respective heirs, personal

       ""n,    Y S~.RMENT AGREEMENT· Pa&e 30
      ~YJI'W~S,_ 8'15'08-fin.l
                                                                                                                   --:/




                                              l(~~                        }Vj
531
                                                        -----                              Page    30'      of
                   representatives, e~ecutors, affiliates, officers, directors, partners, adJ:ninistrators,
                   successors, agents, attorneys, and assigns of and from any and all liabilities, claims, and
                   causes of action including, but not limited to, tortious interference with inheritance rights,
                   tortious interference with contracts, tortious interl'erence with busi.ness relations, physical,
                   mental, or emotional distress, a11y gifts made by Decedent and/or Ward, will contests,
                   claims of conflict of interest, claims against attorneys, accountants, fiduciaries or agents,
                   unjust enrichment, the administration of the Estate or the Guardianship of the Decedent
                   and/or Ward, all claims which were or could have been made in any of the Proceedings or
                   currently pending litigation, fraudule11t concealment, rights of reimbursement, exempt
                   property, fraud, fraud on the community, theft. undue influences, misappropriation, breach
                   of fiduciary duty, and any other statutory rights and demands and causes of action of any
                   kind and/or character, whether known or: wiknown, fixed or contingent. liquidated or
                   unliquidated, whether or not asserted, arising out of or in any way connected with any act,
                   omission or eve11t related to any Party and/or the Decedent's and/or Ward's Estate, the
                   Guardianship of the Ward, and the Revocable and Irrevocable Trusts, save and ex.c:ept for
                   the representations! warranties, and obligations w1dor this Agreement.

       3.21       Release of Temporary Co-Guardians and Permanent CG-Guardians. The Parties
                  acknowledge that they have entered into this Agreement to resolve all pending issues
                  regarding each of the Parties interest in both the Deoedent's and the Ward's Estates and
                  the assets taken, and/or received by certain Parties but not others. The Parties hereby
                  forever release Kip and Sandra as Temporary Co-Guardians of the Estate of Kathryn
                  Gibbs, and as Pennanent Co-Guardians of the Estate of Kathryn Gibbs, their attorneys,
                  predecessors, agents, successors, and assigns, including but not limited to Kip and/or
                  Sandy acting as nex.t-friend of Kathryn or as her attomey-inwfa.ct or .as her fiduciary in
                  any way and their attorneys, employees of their attorneys, and/or other of their
                  representatives. for any and all claims and/or causes of action that any of them had, have
                  or may have in the future relating to their care of Kathryn and/or actions related to any
                  Guardianship proceedings of the Estate of Kathryn H. Gibbs! including, but not limited
                  to any acco\mtings and actions described in said accountings. The Release in the
                  Paragraph immediately above shall apply to all Parties and serve as the full release
                  contemplated by this provision as it relates to Kip and Sandra, individually, and as
                  Temporary Co-Guardians of the Estate of l(athryn Gibbs and Permanent Co-Guardians
                  of the Estate of Ka.t:hryn Gibbs, save and except for the representations, warranties, and
                  obligations under this Agreement.

       3.22       Release of Executor and Kathryn's Personal Representatives. The Parties
                  acknowledge that they have entered into this Agreement to resolve all pending issues
                  regarding each of the Parties interest in both the Decedent's and the Ward's Estates and
                  the assets. take~ and/or received by certain Parties but not others. The Executor and his
                  successors, if any, and Kathryn's Personal Representative shall rely on this Agreement in
                  settling Decedent's and Ward's Estates and distributing Decedent's and Ward's assets as
                  provided herein and shall be obligated to enforce its tenns. The Parties further release
                  and discharge the Personal Representative from a11y claims relating to its compliance

      ~!:!'f!LY SETTLEMENT             AGR££M£N'f- Page 31
  ~U!l1tilbbs\l'lil'l ~·1~'011-llnll

                                                        kO&
532                                                                                             Page
                                                   -----·--·--- ·----·-·. _... ___   ,.
                      with this Agreement, save and except enforcing its terms~ but including but not limited to
                      ceasing collection efforts against any Party to this Agreement regarding property that
                      may be due the Decedenfs and/or Ward's Estates, the determination of the assets in any
                      Party's possession or control, and the distribution va1uos determined for Estate assets as
                      same will be detennined by the tenns of this FSA, save and except for tbe
                      representations, warranties, and obligations under this Agreement.

              3.23    Dismissal of All Claims. Upon Court approval and ratification of this FSA or if it
                      cannot be obtained as soon as practicable after completion of the distributions
                      coQtemplated by this FSA, all Parties agree to and shall dismiss with prejudice and with
                      the effect of res judicata as to all claims, legal actions and/or lawsuits presently pending
                      in this or any other jurisdiction. but particularly those. filed in the Proceedings or any
                      otb.or action cuxrently pending in any Court between the Parties relating to any claims or
                      potential claims between the Parties or any subject matter referenced in tlus Agreement
                      or any other matter, which could have been or arguably could have been brought/filed in
                      any of these actions or at the time of this Agreement, including any will contest to the
                      Will of Kathxyn, following her death, save and except for the representations, warranties,
                      and obligations under this Agreement

             3.24. Parties' Attorney's Fees and Expenses.            With regard to each Parties' legal fees and
                   expenses:

                      (a)      Except as otherwise provid~d in this Agreement, each Party agrees to be
                               responsible for any and all of his/her attorney's fees, costs, and expenses
                               necessary and/or incurred in the effectuation of this Agreement and hereby.
                               waives any right to seek further reimbursement from Decedent's and/or Ward1 s
                               Estates, Personal Representatives, or any other Party.

                      (b)      The Personal Representatives and/or Trustees shall be entitled to reimbursement
                               of his/her/its reasonable and necessary legal fees and expenses from the
                               respective Decedent's and/or Ward's Estate, and/or any Trust being adxninistered
                               pursuant to the terms of this Agree1nent, but waives any rjght to seek
                               reimbursement from any other Party.

                      (c)    . The Parties further agree that if it becomes necessary to assert any claim to
                               tnforce or defend the provisions of this Agreement, the prevailing Party shall be
                               entitled to recover reasonable attorney's fees and other related litigation
                               expenses from the non-prevailing Party. ·In the event of a dispute, each party is
                               obligated to notify the alleged defaulting party in writing of a claimed default or
                               breach oftbis settlement agreement as a condition precedent to seeking legal fees
                               and expenses for breach of contract. The notice shall be by certified mail, and
                               shall grant the alleged defaulting party 20 days to cure the alleged default prior
                               to bringing any action for breach.


           ,Jf,.U..V SETrL~MENT. A.GREEJ'd:ENT • PIZl! 32
           ~\GibbsiFSA 8'1 ~··linal
                                                                                                         Elthiblt
                                             .              ~Ub
.I   533                                                                                      Page    3)      of
                                                                   -----
      3.25       Representations. The Parties to tbis Agreement mitlce the following representations to
                 such other Parties:

                 (a)    The representing Party is legally competent to execute this Agreement and that
                        this Agreement is valid, binding and enforceable as against himself or herself,
                        any s.uch Partyls Successors and Affiliates.

             (b)        The representing Party believes that neither the Decedent nor the Ward have
                        properly executed any right of survivorship or pay on death agreements or other
                        agreements relating to the creation of non-probate assets and that, if any such
                        agreements exist each respective Party hereby revokes said agreement and
                        returns it to its original title and that any such agreements or contracts are void
                        and of no effect and that any non-probate assets are an asset of either the
                        Decedent's and/or Ward's estate and pass pw:suant to the tenns of this.
                        Agreement.

             (c)       The representing Party owns the claims released herein and has not assigned,
                       released, waived. relinquished, pledged or in any mwmer what5oever, sold or
                       transferred, his or her interest, right, and/or claims to or against the Decedent,
                       Decedent's Estate, Ward: Ward's Estate, except as to his or her attorneys, and or
                       the following persons who will also join in the execution of this Agreement.
                       Ken, Candy, and Howard Kirk represent that they have assigned an interest to Al
                       Barcro~ who approves and ratifi~ all o£ the tenns and provisions of this
                       Agreement as represented by his execution of this Agreement. The Parties agree
                       that the interest of Kathryn and the interest of Kip, respectively, is not and shall
                       never be affected or reduced in any way because of any assignment of any
                       interest made by Ken, Howard Kirk or Candy to AI Barcroft or any other person
                       alld that any such assignment shall only affect or reduce the interest of Ken,
                       Howard Kirk and/or Candy in any Property covered by this FSA.

                       Further, the Parties agree 1hat the enforcement of the assignment by any Party to
                       a:ny attomey or third party may be secured at the request of such attorney or third
                       party by the filing of an appropriate Security Agr~ment/Deed of Trust, reflecting
                       the existence of the assignment obligation and the enforcement of the same by the
             \         attorneys and/or third party who will be treated as Secured Parties.

             (d)       Eaeh Party confirms nnd agrees that such Party (i) has relied on his or her
                       own judgment and has not been induced to sign or execute this Agreement by
                       promises, agreements or representations not expressly stated herein, (it) has
                       freely and willingly executed this Agreement and hereby expressly disclaims
                       reliance on any fact, promise, undertnking or representation made by any
                       other Party or Personal Representative, save and except for the express
                       agreements and representations contained in this Agreement, (iii) walves any
                       right to additional information regarding tbe matters·gonrned and effected
                                                                                                              I   I




534
                           by this Agreement, save and except for those matters whicb each Party has
                           an express affirmative obligation to disclose, (iv) was not in a significantly
                           disparate bargaining position with the other party and is not under any form
                           of legal disability or incapacity at the time be or she executes this Agreement,
                           (v) has been represented by competent legal counsel of his or her choosing in
                           connection witb the execution and delivery of this Agreement and in any and
                           all matters relating thereto, or has volunta.rUy waived such right, (vi) has not
                           gjven consent to this agreement, nor was the same procured , obtained or
                           induced by improper conduct, undue influence, or duress, and (vii) either (1} .
                           bas knowledge of all relevant and material information and facts and has
                           been fully Informed, including by advice of counsel, concerning the existence
                           of potential ClaiJnS or any other Party, including other additional affirmative
                           or defensive claims arisin& from aU matters known to hlm or her aud arising
                           during the period of negotiations leading to and culminating in the execution
                           by him or ber of this Agreementt ln order for him or ber to make an
                           informed and considered deeislon to enter Into this Agreement, and/or ('l}
                           specifically iUJd after advice of counsel is waiving (a) any right to obtain or
                           demand sucb lnformatlon, and (b) any obligation of any other Party.

                   (e)     Each Party con:fums and agrees tha.t Scott Pelley and the law finn ofNall~ Pelley
                           & Wynne; Virginia Hammerle and the law firm of Hammerle Finley; Rickey
                           Brantley and the law firm of Jose, Henry, Brantley, Maclean & Alvarado; and Jay
                           Henderson of the law finn of Cruse, Scott, Henderson & Allen, solely represent
                           Ken, Candy, and Howard Kirk, and d.o not and have never represented any other
                           Party and have not provided any other Party legal advice or services, or made any
                           representation to any other party.

                   (f)     Each Party confinns and agrees that DavidS. Bouschor, ll of the Law Office of
                           DavidS. Bouschor, IT, P.C.; Jeff Springer of the Springer & Lyle, L.L.P. law finn
                           and Kevin Spencer of the law firm of Spencer & Waterbury, solely represent Kip
                           and Sandra, and do not and have never represented any other Party and have not
                           provided any other Party legal advice or services, or made any representation to
                           any other party, save and except for any possible past representations by David S.
                           Bouschor, IT ofKathryn, at anytime.

                   (g)    Each Party confirms and agrees that S. Camille Milner solely represents Kathryn
                          Housewol'th Gibbs, as Attorney Ad Litem and does not and has never represented
                          any other Party and has not provided any other Party legal advice or services, or
                          made any representation to any other party. Each Party confirms and agrees that
                          Jimmy Walker solely represents Kathryn Houseworth Gibbs, as Guardian Ad
                          Litem and does not and has never represented any other Party and has not
                          provided any other Party legal advice or services, or made any representation   to
                          any other party.


         )'~YSETI1..Ji:f\oJtNT AGREEMENT- Page   34
         ~1bbs~SA 8'15'08·fina1


  535                                                 ~uG
- - · . -· ····· ···----·· ---   ....
                 (h)     Each of the Parties acknowledge and understand that none of the Personal
                         Representatives represent his or her interest in matters relating to the Decedent's
                         and/or Ward's Estates, bas not provided to them legal advice and has not made
                         any representations to him or her. Each Party further acknowledges that (i) the
                         Personal Representatives and/or Trustees have suggested that he or she retain
                         counsel if they have any questions regarding the tenn.s or effect of this
                         Agreement, and (ii) each Party is relying on his or her own judgment in entering
                         into this Agreement.

                (i)      Each Party understands and agrees that each other Party has relied upon these
                         representations and warranties in entering into this Agreement.             ·

        3.26    Futllre Disputes.

                (a)      If there is any dispute or controversy among the Parties and/or the Personal
                         Represent!ltives and/or Trustees, or any of them, involving any aspect of this
                         Settlement Agreement and the administration of the Estates of the Decedent and
                         the Ward, the parties to the dispute may agree on the manner of resolution.

                (b)       The interest of each Party/beneficiary in either the Estates of the Decedent and
                         Ward, or in any Trust involved in this Family Settlement Agreement, is
                         conditioned on the beneficiary agreeing to and complying with the foregoing
                         provision. If a beneficiary refuses to participate in AD'Rt altd if there is a finding
                         by a Court having jurisdiction, that a beneficiary failed to participate in good
                          faith, the beneficiary's interest in the Estates of the Decedent and Ward, as well
                         as in the Trusts, shall be forfeited and the beneficiary, if an individual, shall be
                         treated as having predeceased the Decedent and the Ward with no surviving issue.
                         If for any reason it is determined by the court having jurisdiction over this Family
                         Settlement Agre,ement that the foregoing provision for forfeiture is not effective,
                         the Parties to this Family Settlement Agreement authorize the court having
                         jurisdiction over this Family Settlement Agreement and the Estates of the
                         Decedent and the Ward and the Trusts, to award costs and attorney's fees from
                         the beneficiary's share or from other amounts payable to the beneficiary.
                (c) ·    The provisions of subparagraph (b) above shall not apply to the beneficial
                         interests of:

                         (1)     The Ward, and spouse of the Decedent, to the extent that her interest
                                 would otherwise qualify for an estate o:r gift tax marital deduction;

                         (2)     any beneficiary, to the extent that the beneficial interest would otherwise
                                 qualify for an income, gift, or estate tax deduction fo:r charitable purposes
                                 unless and until all such charitable beneficial interests have expired.

                         If, however, the WaJ:d or any such beneficiary to whom the above forfeiture

       ~Y. SETTLEMENT AGREEMENT· Pll!lc 3S
    p-ys'Oibb&'*S'- e'IS~-m.-1
                                                                                                      Exhibit ·   ,_.A.
                                              ~()'
 536                                                                                       Page     3 5 of_l...~!f+
-----------·--···--··-·--.. -·-·-·
                                          provisions do not apply nevertheless fails to participate in good faith in
                                          alternative dispute resolution as provided in this article, the court having
                                          jurisdiction over this Settlement Agreement and the Estates of the Decedent and
                                          the Ward and the Trusts, is authorized to award costs and attorneys fees from
                                          that person's beneficial share.

                                 (d)      The acceptance of the Trust or Trusts established by this Family Settlement
                                          Agreement by any trustee or co-trustee constitutes the trustee's or co-trustee's
                                          agreement to comply with subparagraph (a) above. If a trustee or co-trustee fails
                                          to comply, it s)l.all be deemed that the trustee has resigned, and the Parties
                                          authorize tl1e court having jurisdiction over this Trust to surcharge the trostee for
                                          costs and attorney's fees. [The personal representative's consent to act constitutes
                                          his, her, or its agreement to comply with subparagraph (a) above. If a personal
                                          representative fails to comply, it shall be deemed that the personal representative
                                          has resigned, and the Parties authorize the court having jurisdiction over this
                                          Family Settlement Agreement and the Estates of the Decedent and the Ward and
                                          the Trusts, to surcharge the personal representative for costs and attorney's fees.)

                                 (e)      All parties waive his or her right to seek a jury trial on any is11ues relating to the
                                          Family Settlement Agreement.

                          3.27   Entire Agreement. The provisions of this Agreement constitute the entire Agreement
                                 betWeen the Parties, and supersede all previous negotiations and documents. No oral
                                 modification shall be binding upon either Party. The terms hereof are contractual in
                                 nature and are not mere recitals, and shall be binding upon the heirs, spouses,
                                 descendants, executors, administrators, successors, representatives, and assigns of tbe
                                 Parties hereto, upon complete execution by the Parties.                     ·

                          3.28   Consideration for this Agreement. The consideration for this Agreement is, at a
                                 minimum, the mutual promise of each party to do and act as stated in this Agreement, in
                                 addition to the other specific money or piopet.ty exchanged or promises COlltained in this
                                 Agreement. Any services that either Party may provide to the other or for the benefit of
                                 the o~er are fully compensated by this Agreement Neitber Party shall acquire any right
                                 of reimbursement from the other party or any interest in or claim to the present or future
                                 property of the other party by virtue of any services or contributions by one party to or
                                 for the benefit of the other Party.

                          3.29   Modification of Agreement. This Agreement may not be modified except by
                                 $ubsequent agreement, in writing, signed and acknowledged by all Parties. No
                                 amendment or modification of this Agreement shall be effective, unless executed, in
                                 writing, by all Parties hereto.

                          3.30   Severability. If any provision of this Agreement is deemed to be invalld or
                                 unenforceable, it shall be deemed severed from the remainder of the Agreement. The

                      JJJI/LY SE'ITL"tM£NT AGREEr.'IENT- PA&e 36
                 /~\Gibbs\FSII. 8'15'08-final               ·
                                                                                                                         Exhibit   A
__ 537___________
    ..;;.....:::;_.:...                ···--·---------··-                                                     Page   3~       of
                remainder of the Agreement will continue in full force and effect without being impaired
                or invalidated in any way and shall :remain binding upon all Parties hereto.

      3.31      Document Execution. The Parties agree to execute all documents and take all further
                acts necessary to consummate the agreement contained herein, including the releases and
                necessary pleadings, if any, dismissing the Proceedings within 30 days of the effective
                date of this FSA.

      3.32      Construction. All Parties acknowledge and agree that aU the Parties have participated in
                the drafting of this Agreement and no one Party or the Personal Representatives shall be
                considered the drafter of this Agreement and, therefore, no presumptions shall be made
                for or against any other Party on the basis that any one Party was the drafter of this
                Agreement.

      3.33      Multiple Counterparts. This Agreement may be executed in multiple counterparts,
                each of which shall be deemed an original for all purposes.

      3.34      Choice     or Laws and .Venue.   This Agreement shall be construed and interpreted in
               accordance with the laws of the State of Texas, and appropriate and exclusive venue for
               any suit arising out of this Agreement is agreed by the Parties to be in the Statutory
               Probate Court of Denton County, so long as the matter is not presided.over by Judge Don
               Windle. In the event that the matter will be heard by Judge Don Windle, then, in that
               event, the parties agree that venue shall be in the Probate Court No. 2 in and for Tarrant
               County, Texas.
      3.35     Assignment. This Agreement and the rights and obligatioDS of the Parties hereto shall
               not be assigned or delegated by any Party hereto without the prior written consent of the
               other Parties hereof.

      3.36     Incorj)oraiion. All Exhibits attached hereto are hereby incorporated by reference in this
               Agreement for the purposes set forth above.

      3. 37    Headings. The paragraph headings and sub-headings used herein are for descriptive ·
               purposes only. The headings have no substantive meaning and the tenns of this
               Agreement shall not be affected by such headings.

               EXECUTED on the dates herein after written.




                                                                                                            II
   .d,sm-YS&ITLEMENT AG:U£MINT • PlP 37
  ~~e~\G!bb&lt:SA 8'15'08-fmnl

                                          ~bb.
538
                  ···--·....·-··   ---------
      READ, UNDERSTOOD, APPROVED AND
      AGREED AS TO FORM, CONTENT
      AND SUBSTANCE:




      Kenneth Vern Gibbs, individually, as Independent
      Executor of and as an heir and/or beneficiary of the Estate
      of Bert H. Gibbs, Deceased, and as a potential heir and/or
      beneficiary of the Estate of Kathryn H. Gibbs, both
      Individually and/ or as an Incapacitated Person, and as a
      contingent beneficiary of the Mary L. Houseworth
      Revocable Trust (..Houseworth Trost") and· the Kathryn
      Houseworth Gibbs 'Inevocable Trust ("Kathryn Gibbs
      Trust'~, and as the virtual representative and next friend of
      his children, and their successors, plus those minor, unborn,
      unascertained, and contingent beneficiaries of the Estates
      of either Bert H. Gibbs, Deceased, and/or the Estate of
      Kathryn H. Gibbs. Individually and/or as an Incapacitated
      Person.



      STATE OF TEXAS                         §
                                             §
      COUNTY OF TARRANT ·                    §

              This instrument was signed and acknowledged before me on the             ~   .6    day of
      ~.f2\t'tY\be./           , 2008, by KENNETH VERN GmBs, in the above stated ca    cities, known to
      me or whose identity was verified.



                                                    My Commission expires on:   f.- tl-2011




 .   ~y SETI1..~MEJIIT AGREEMENT- P~gc 38
 ~ull;.lbb'eSA 8'1~'08-t!n~l
                                                                                                 Exhibtt
539                                      k'lJ'                                        Page      1~   of
    READ, UNDERSTOOD, APPROVED AND
    AGREED AS TO FORM, CONTENT
    AND SUBSTANCE:



    Candace Gibbs Walton, individually, as an heir and/or
    beneficiary of the Estate of Bert H. Gibbs, Deceased, and
    as a potential heir and/or beneficiary of the Estate of
    Kathryn H. Gibbs, Individually and/or as an Incapacitated
    Person, and as a contingent beneficiary of the Mary L.
    Houseworth Revocable Trust (''Houseworth Trust") and the
    Kathryn Houseworth Gibbs Irrevocable Trust ("Kathryn
    Gibbs Trust"), and as the virtual representative and next
    friend of her children, and their successors, plus those
    minor, unborn, unascertained, and contingent beneficiaries
    of the Estates of either Bert H. Gibbs. Deceased, and/or the
    Estate of K.a.tbryn H. Gibbs, Individually and/or as an
    Incapacitated Person.


    STATEOFTEXAS                             §
                                             §
    COUNTYOFTARRANT                          §

            This instrument was signed and acknowledged before me on the                 5       day of
      ..S'ep±r~.L              , 2008, by CANDACE Gmas WALTON, in the above stated capacities,
    koown to me or wlwse identity was v e r i / : : ?          .             /      ..


                                         ~~
                                                 My couucission expires on: 9""' '-1- '2.t:'XI




    IAMU.Y SE'ITLEMENT AGREEMErn'- Pa&e 39
 ~ns\Gibbs\FSA 8'1S'08-fimll


540 -·------··-----                                                                '"' '
                                                                                      f)age      ]q   of
      READ, UNDERSTOOD, APPROVED AND
     AGREED AS TO FORM, CONTENT
     AND SUBSTANCE:




     STATE OF TEXAS                          §
                                             §
     COUNTYOF~                       _       §

            This instrument was signed and acknowledged before me on the ,:;.~ day of
         ~                        , 2008, by KIP HUGHES GmBS, in the above stated capacities, known to
     me or whose identity was verified

                                                  ~.
                                                   and
                                                    Notaiy Public in     for the State of Texas

                                                    My Commission expires on:....-1_0_-_t,_. . .B'-!f.__
                                                                                                .       __




54l_____ ......   .   ·······-·-. ··--..·~- . ---~--------.
                                                                                        Page-
      READ, UNDERSTOOD, .APPROVED AND
      AGREED AS TO FORM, CONTENT
      AND SUBSTANCE:



      Ho ard Kirk Gibbs, individually, as an heir and/or
      beneficiary of the Estate of Bert H. Gibbs, Deceased, and
      as a potential heir and/or beneficiary of the Estate of
      Kathryn H. Gibbs, Individually and/or as an Incapacitated
      Person, and as the former Independent Executor of the
      Estate of Bert H. Gibbs, Deceased, and as a contingent
      bencficiazy of the Mary L. Houseworth Revocable Trust
      C'Houseworth Trust'~ and the Kathryn HousewQrth Gibbs
      Irrevocable Trust (''Kathryn Gibbs Tn.tst"), and as tlle
      virtual repres~tative and nex.t friend of his children, and
      their successors, plus those minor, unborn, unascertained,
      and contingent beneficiaries of the Estates of either Bert H.
      Gibbs, Deceased, and/or the Estate of Kathryn H. Gibbs,
      Individually and/or as an Incapacitated Person.


      STATE OF TEXAS                               §
                                                   §
      COUNTY OF TARRANT                            §

             This instrument          was                                              ..5.,
                                              signed and acknowledged before me on the .....___ day of
      -Se~(k.tO..._._~f2£:.->ootJC.____,...._._). 2008, by HowARD KIRK Gmas, in the above stated capacities,
      known to me or whose identity was verified.


             ~~        CATHIE L SMITH
                  Notary Public. State of TG~~et
                    MV Commllllon &xplres
                     Sepfembtf 04, 2011
                                                         My Commission expires on:f- ~ 20//
                                                                                  -




542
                                 ·.


      READ, UNDERSTOOD~ APPROVED AND
      AGREED AS TO FORM~ CONTENT
      AND SUBSTANCE:



      Kathryn Houseworth Gibbs, individually, as an heir and/or
      beneficiary of the Estate of Bert H. Gibbs, Deceased, and
      as the primary beneficiary of the Mary L. Houseworth
      Revocable Trust ("Houseworth Trust'') and the Kathryn
      Houseworth Gibbs Irrevocable Trust ("Kathryn Gibbs
      Trust'')~ and as the Ward of the Temporary Guardianship
      Estate of Kathryn H. Gibs, an Incapacitated Person.



      STATE OF TEXAS                         §
                                             §
      COUNTY OF _________                    §

               This instrument was signed and acknowledged before me on the                    day of
      - - - - - - - - · 2008, by KATHRYN HousEWORTH GmBs, in the above stated
      capacities, known to me ot· whose identity was verified


                                                 Notary Public in and for the State of Texas


                                                 My Commission expires on:._ _ _ _ _ __




                                                                                                        /1
 ·~!~m.Y SETILEMENT /I.CREEMli:NT ·Page 4l
 ;"'~Clibbs...SA &'15'08-"u~l



543                                                                                    Page
      READ~ UNDERSTOOD, APPROVED AND
      AGREED AS TO FORM, CONTENT
      AND SUBSTANCE:


        ~:t.                   AJJ?
      Sandra Faye GibbS:TJtvidually, and as the Temporary
      Co-Guardian o! the Estate of Kathryn H. Gibbs, an
      Incapacitated Person.



      STATE OF TEXAS                         §
                                             §
      COUNTYOF       ~                       §

             This instrument was signed and acknowledged before me on the             02 '1~ day       of
          rl.c."aY.d            , 2008, by SANDRA FAYE Gress, in the above stated capacities, known
      to me or whose identity was verified


                                                        N6tary Public in and for the .State of Texas

                                                       · My Commission expires on: J0 . . {# ...{) 1




544                                                                                Page     Y3     of
      READ, UNDERSTOOD, APPROVED AND
      AGREED AS TO FORM, CONTENT
      AND SUBSTANCE:




      STATE.OFTEXAS                          §
                                             §
      COUNTY OF TARRANT                      §

             This instrument was signed and acknowledged before me on the           ~       day of
      5e~ m\Oe'Y"                       '    2008, by AL BAR€ROFt, in the above stated
      known to me or whose identity was verified




                                                   My Commission expires on:   fl:if 20//




   PAMILY SE'I"TLEMENT AGREEMENT -l>asc 44
 ~'l..i1bb111-SA ~·J~'\JI!-tn131


545
                                      KLJt.                       ·w;
      READ, UNDERSTOOD, APPROVED AND
      AGREED AS TO FORM, CONTENT
      AND SUBSTANCE:



      Camille Milner-Attorney Ad Litem for the Ward,
      Kathryn H. Gibbs



      STATE OF TEXAS                      §
                                          §
      COUNTY OF TARRANT                   §

             This instrument was signed and acknowledged before me on the          -~
                                                                                             day of
      ~------.._...,• 2008, by CAMILLE MILNER,            in the above stated capacities, kn.own to
      me or whose identity was verified



                                               Notary Public in and for the State of Texas

                                              · My Commission expires on:._ _ _ _ _ __




546
      THE STATE OF TEXAS              §
                                      §              GWB Family and Friends Trust
      COUNTY OF TARRANT               §



                                      TRUST DECLARATION

      This declaration of trust is made &is _ day of November, 2008, between Kenneth
      Vern Gibbs, a resident ofTmant_b,urrty, Texas; Cmd•ce Gibbs Walton, a resident of
      Parker County, Texas; and Howfhi Kirk Gibbs, a resident of Denton Count)r, Texas,
      collectively the "Settlor" of this ifust agreement, regarding, and intended to distribute, the
      division of the gross net proceeds due these parties from the Estate of Bert Hughes
      Gibbs.




                               ARTICLE I~ Tim TRUST PURPOSE

      1.1 PrQ;gertY. in Trust: The beneficiaries of this trust are beneficial owners of rea)
      property. including, but not limited to, land, oil and gas royalties, and working interest in
      oil Ellld gas wells that was passed to them from the Estate of Bert Hughes Globs, who is
      now deceased, under the terms and conditions of his Last Will and Testament.

      1.2 Pur;pose of Trust: The overriding purpose of this trust. is to collect and hold all
      property left to, or accumulm:ed by, the beneficiaries, or any individual beneficiary,
      hereto, to account for and pay all liabilities pertaining to such property~ inclu<ling, but not
      limited to income taxes, property taxes, and any other governmental taxes ar fees; and
      then distribute the remaining proceeds to the beneficiaries hereto in a manner
      commensurate with their beneficial interests, as shown herein.

      1.3 Ua~ ~Lam; ofthe State of Texas: lt is the Settlor's intention that this tnsst be in
      full compliance, and organized under, the Texas Trust Code, Any provision found by a
      court of competent jurisdiction to be in violation of any section of the Texas Property
      Code, or any law of 1he State of Texas, shall either be automatically a.mended to comply
      with such code or law in such a manner as to keep its original meaning or pmpose as
      closely as possible; or, if no such amendment is possible, that particular provision shall
      be stricken from the trust agreement. In either case, it shall be deemed to have no effect
       on the trust agreement in general, or upon any particular provision within the trust
      agreement

                                  ARTICLE ll- NAME OF TRUST

       The trust shall be know as the GWB Family ·and Friends Trust.

547                                  GWB Family and Friends Trust                    Page
                                                PBRe 1 of7
                                      ARTICLE ID- BENEFIClARIES

           3.1 Bcmeficiaries: The beneficiaries. and percentage of beneficial interests, are as
           follows:
                  Kenneth Vern Gibbs:     25.011614% of-the trust;
                  Candace Gibbs Walton: 25.011613 % of the trust;
                  Howard Kirk Gibbs:      25.011613% of the trust;
                  Pentex Foundation:      24.96516% ofthe trust.

           3.2 V ating Sharys: Actions and decisions concerrring the trust shall be govemed by vote
           of the beneficiaries hereto. Sixteen (16) votes will represent a majority of the· votes on
l          any issue lJD.l.ess specifically set herein. at a different vote requirement. Each beneficiary
           shall have following votes in any matter of the trust for which a vote is called:

                  Kenneth Vern Gt'bbs:         5 votes;


l'
                  Candace Gibbs Walton:        .5 votes;
                  Howard Kirk Gibbs:           S votes;
                  Pcntcx Foundation:            15 votes.


~          3.3 Voting Proced.ures: Votes may be cast at any time and any place agreed upon by at
           least two (2) of the beneficiaries, and 16 vo-te8 will carry any issue. Acy beneficiary
           hereto shall be allowed to call for a vote on any issue. Percentages of beneficial interest,
I          or the method in which distribution are made, in the tnJ.st or mproceeds shall -require a
           1manirnous vote with all parties voting (30 votes).




'l
                                        ARTICLE IV- REVOCABLE

           This trust shall be revocable.

                               ARTICLE V- APPOINTMENT OF TRUSTEE

I'
           Settlor hereby appoints Waymond James Walton as the Independent Trustee of this trust.
           Trustee shall serve without bond or supervision of any court while in conformity with the
           tezm8 laid out in this trust and its minutes.
l                                      ARTICLE VI- TRUST ESTATE

r          The Trust Estate shall be comprised of property transferred to the trust in the form of
           Deeds of Trust assigned to this trust. and filed in the county records of Denton and Wise
           Counties, the State of Texas; and, royalties due Settlor from the Estate of Bert Hughes
f          Gibbs as per Bert Hughes Gibbs Last Will and Testament. Other property rna.y pe
           brought into the trust. and become Trust Property, through agreement in tbe manner
           prescribed herein of 16 votes of the voting shares of this trust. Property .may be bought,
1:
           sold, exchanged, or transferred upon the approval of the beneficiaries by at least 16 votes
           cast in the manner prescribed herein.
1:                                                                                                       Exhibit
     548                                    GWB Family and Friends Trost
                                                     "PROP.? nf7
                                                                                           Page     J.      of
                    ARTICLE Vll- DISPOSITION OF INCOME AND .PRINCIPAL                    .
           7.1 JJuties. qfTmst:ee: The Trustee .is hereby co1lllllanded to do the following:
                  1. Pay all bills and liabilities of the trust unless specifically ordered by e. 16 vote
                      majority to do otherwise in a specific case;
                  2. Figure. or have JII'Ofessionally figured if approved by a 16 vote majority,
                      income taxes due on the .income of the 1rUst;
                  3. Pay all income taxes due on a.o.y irulome of the trust;
                  4. Pay all property tax due (and not paid by ather entities) on any property in the
                      tro5t estate;
                  5. Pay any other debts of the trust which are brou.ght to his attention (the
                      foregoing is conditioned on sufficient funds being available in the trust
                     account);
                  6. Keep a sufficient amount of cash (to be decided by a 16 vote majority) .in the
I                    main trust a.ecount for operating expenses and any known liabilities upcoming
                     in the immediate :future; and,
                  7. Divide any overages into proportions equaling the beneficial interests of each
I                    party, and deposit the appropriate amount for each specific beneficiary into a
                     an account designated by that beneficiary for private use of that party.

l          7.2 D.imositio!l of Principal During Life of Trust: No part of the principal may be
           disposed of during the life of the trust unless first commanded by a written order in which

l          beneficiaries with 30 votes (unanimous) concur and sign ordering such sale or disposal

                                      ARTICLE VIn- TERMINATION

l.         8.1 JerminAtio~ Q!Trust: The trust will termi.nate twenty (20) years after the first death
           of any ofthe bene:ficiaries hereto.

l          8.2 Distribution UPOP. termination: Distribution upon termination shall be made in
           accordance and in direct proportion with the beneficial ownership interest show herein.
I          In the case of those beneficial owners who are already deceased, distribution of their
           portion shall be made to their estate, or according to the terms of their will.

            ARTICLE IX- TRUST ADMINISTRATIVE AND PROTECTIVE PROVISIONS
t
           The trust shall be administered expeditiously and consistently with its terms. free of any
I          judicial intervention and without order, approval, or other action by a court, subject only
           to the jurisdiction· of a court which is invoked by the trustee or beneficiary t or as
           otherwise provided by law.
I                               ARTICLE X- MODIFICATION OF TRUST
           10.1 MoQification by Texas court: This trust sball be s\'1bject to modification or
           temUnation by a Texas court only if such modification or tennination would serve to
                                                                                                                  ?
           enforoe 1he original intentions of the Settlor, if the intentions of the Settlor are no longerExhibit, _
     549                                  GWB Family and Friends Trust                                 ·3
                                                 Page 3 of 7                                  Page __
                                                                                                    "'---.,;.,;
 r

 l         obtainable, or if the trust is used for illegal purposes; then, and only then, the trustee or
           any beneficiary hereto may seek modification or tettnin.ation of the mist through the



l'
           Texas courts.

           10.2 Moditigatjon by inf.ro;$;d parties: 'I'his trust may be modified. by a: vote of the
           beneficiaries in which 30 votes (unanimous) are cast for such modification,. The trustee
           is not authorized to modify the trust in any way without a vote among the beneficiaries in
           which 30 votes are cast in favor of such modification.
·t
           103 Tm frQperty not sul?ject to Probe@: Any property payable to, or owned by, this
           trust sball not be subject to the claims against the estate of any beneficiary or interested
t          person hereto following death, nor shall such benefita be subject to the control of the
           personal 1epresentative of the interested party, nor be included in the propetty

I          administered as part of the probate estate of the interested party. Upon the death of any
           intetested party hereto, the property contained in the tru.'Jt shall pass as set forth herein,
           and under no circumstances sball the property in this trost be considered to be part of the

I          probate estate of any beneficiary or other interested party hereto.

           10.4 Inalienalrilitf: No beneficiary or interested party shall have any tight to anticipate,

I          sell, assign, ·mortgage, pledge, or otherwise .dispose of or encumber all or any part of the
           trust estate, nor shall any part of the tiu.st: estate inc}udjng. but DDt limited to, income, be
           liable for the debts or obligations, including, but not limited to, alimony, cbild support,

I          tax liens, tax assessment or seizute, of any beneficiary or interested party, or be subject to
           attachment, ga:mishment, execution, creditor's bill or any other legal or equitable process
           unless such is fust approved by a vote of the beneficiaries in which 30 votes are cast in
I          favor of such actiOn.

                                ARTICLE XI- POWERS OF THE TRUSTEE
·a         The trustee shall have such powers as are prescribed to him in the nlinutes of this trust,
           and none other. The trustee shall administer this trust to the best of his ability within the
I          powers prescribed to him.

                                  ARTICLE XII- TRUSTEE SUCCESSION
I          12.1 Resi.gna.tion or death of trustee: The trustee may resign by giving 30 days written
           notice of his intention to do so. In the event of resignation or death of the trustee. a new
I          1nlstee may be appointed by a vote of the beneficiaries in which 16 votes are cast in favor
           of the new trustee.

I          12.2 Right Qf Beneficiaries to ~ge !nJt~t~: The beneficiaries may, at any time, elect
           to change truste.es by a vote in which at least.l6 of the beneficiary votes are cast for such
           change. The vote must include the person who shall be named as 1he new trustee. A 30
I          day notice, or payment of 30 days salary or fee, to the trustee being removed must be
           given.

I    550                                   GWB Family and Friends Trust
                                                                                             Page     lJ      of
                                                      Page 4 of7
           12.3 No bond: No 'trustee, or any successor, shall be required to give ~y bond in any
           jurisdiction~  and if, notwithstanding this direction, any bond is required by any law,
           statute or rule of court, no sureties shall be required.                          .

                                             ARTICLE XIIT- TAX NUMBER
                                                                                          ,
           The "tax. identification number" assigned by the Internal Revenue Service to 1his trust is
           26--6630588.
I                                            ARTICLE XIV- DEFINITIONS

~          "Bmeficiaryr1 means a person for whose benefit property is he.ld in trust, regardless of
           the nature of the interest.

           "Court" means a court of appropriate jurisdiction.


l'         "Jncome" shall be as defined in Section 116.002 of the Texas Trust Code.

           "Interested Party(ies)" means a trustee, beneficiary, or any other person having an
           interest in or a claim against the trust or any person who is affected by the Bdministm:ion
1          of the trust.

           "Principal11 shall be as defined in Section 116.002 of the Texas Trost Code.
l          "P10perty" means any type of property, whether r~ tangible or intangible, legal, or

I          equitable.

           ' Settlor11 meaii8 a. person [or persons] who creates a trust or contribut~ propercy to a
               1




I          trustee of a trust. If more than one person contributes property 1o a trustee of a trust, each
           person is a settlor of the portion of the property in the trust attributable to that person's
           contribl.lti.on to the trust
I          "Trust property'1 means property placed in trust by one of the methods specified in
           Section 112.001 of the Texas Trust Code or property othexwise transferred to or acquired
I          or retained by 'the trustee for the trust.
               11
                    Trustee11 means the person holding the property in trust
I              Except as otherwise provided herein1 definitions of words and terms in this trust shall be
               in accordance with the Texas Trust Code, as amended.
I                                           ARTICLE XV- CONSTRUCITON

I              13.1 Conformity with Statutes: In case of ambiguity or conflict, this trust should be
               construed in such a manner and shall be deemed to comply 'With the provisions of the
               Texas Property Code, Trtle 9, Trusts, as amended.
I    551                                        GWB Family and Friends Trust
                                                       Pa~ 5 of7                              Page    5
                                                                                                       Exhibit

                                                                                                            of
     13.2 Amilica.hle yw: The validity of this trust shall be determined by reference to the laws of
     Texas. Questions of construction and administration of this trust shall be detennined by
     reference to the laws ofTexas.

     13.3 Headlines of Articles and Sections: The headings of articles end sections are  included solely
     for convenience of reference, and shall have no significance in the interpretation of this
     instnlmenl

     Signed by Kenneth Vern Gibbs (Settlor), Candace Walton (Settlor), and Howard Kirlc Gibbs
     (Settlor) who, by their signatures, below indicate their agreement and intent form the above
     referenced trust and abide by its terms; and Wayrn.ond James Walton (Trustee), who, by his
     signature below accepts the office ofTt1lStee on the date indicated on page 1 of this Trust
     Agreement.




l
I
I
I
I
I   552                                                                                Page      &
                                                                                                  Exhibit

                                                                                                       of
                                         AFFIDAVIT

THE STATE OF TEXAS                   §
                                     §
COUNTY OF TARRANT                    §

       BEFORE ME, the undel.'signed authority on this day personally appeared Kenneth Vern

Gibbs, Candace Gibbs Walton, Howard Kirk Gibbs. Waym.ond James Walton, known to me to

be the person whose name is subscn'bed to the foregoing instrument, and acknowledged to me

that he executed the foregoing instrument for the purposes and consideration therein expressed.



                                                      ~~~
                                                    Kenneth Vem Gibbs

                                                    .ePt;vloce.       i1J4,
                                                    Candace Gibbs Walton
                                                                                    AJo.1ihu
                                                      ~
                                                    ifowa.Td Kirk Gibbs
                                                      w~~M.

         SUBSCRIDED AND SWORN TO BEFORE ME on this the 7th day ofNovember) 2008,
to certify which witness my hand and seal of office. ~

                                                   C          ~fl·f·LlJ,fSov
                                                     Notary Public in and for the
                                                     State of Texas




                                                                                                              ·~~~~~.   '•,,
                                                                                              Exhibit ,;td'/                   ';\
                                                                                                      l'fil                      1,



553                                                                                 Page __7'-----of   (~i·
                      MOTION HEARING - August 20, 2014

                            REPORTER'S RECORD
                          VOLUME 1 OF 1 VOLUMES
                  TRIAL COURT CAUSE NO. 2005-0000126-2-D

                                          )
        IN RE: ESTATE OF BERT             )   IN THE PROBATE COURT
        HUGHES GIBBS, DECEASED;           )
                                          )
        CANDACE WALTON AND                )
        KENNETH GIBBS,                    )
                                          )
                   Plaintiffs,            )
                                          )
        vs.                               )   COURT NO. 2
                                          )
        BEVERLY MILLER,                   )
        INDIVIDUALLY, AND AS              )
        TRUSTEE OF THE GWB                )
        FRIENDS AND FAMILY TRUST,         )
        ALBERT BARCROFT,                  )
        INDIVIDUALLY AND AS LEGAL         )
        REPRESENTATIVE OF PENTEX          )
        ROYALTY TRUST AND PENTEX          )
        FOUNDATION, DANNY UNGER,          )
        AS TRUSTEE OF GBU FRIENDS         )
        AND ASSOCIATES TRUST, AND         )
        HOWARD KIRK GIBBS,                )
                                          )
                   Defendants.            ) TARRANT COUNTY,    TEXAS


                                  *****
                           ***MOTION HEARING***
                                   *****
              On the 20th day of August, 2014, the following
      proceedings came on to be heard in the above-entitled
      .and numbered cause before the Honorable

      Patrick Ferchill, Judge presiding, held in Fort Worth,

      Tarrant County, Texas;



              Proceedings reported by machine shorthand.

                           CRC for Wells Reporting
                                817-524-6644                           Exhibit   L,
554
                                                              Page_-'l_ot_~~
                                                                           Page 104
                             MOTION HEARING - August 20, 2014

 1           Q.     Okay.     Let's change gears and talk about --

 2                          MS. LEE:     Objection, your Honor.          I'm just

 3   wondering what the relevance of this document.
 4                          THE COURT:     Yeah, I do, too.
 5                          MR. GIBBS:     Well, the relevance is, your
 6   Honor, this is original contract that was between

 7   myself, my siblings and Al Barcroft, that allowed for

 8   the 30 percent to be paid to Al Barcroft for his
 9                          THE COURT:     And it was drawn up by
10   Mr. Barcroft?

11                          MS. LEE:     Yes, your Honor.

12                          THE COURT:     Right?

13                          MR. GIBBS:     No, I did not say that --

14                          THE COURT:     No, I'm asking you.          It was
15   drawn up by Mr. Barcroft?

16                          MR. GIBBS:     It's my understanding that an
17   attorney helped Mr. Barcroft draw it up.                    That's what my

18

19                          THE COURT:     And is that -- that attorney's
20   name on this agreement or anything connected?
21                          MR. GIBBS:     I don't believe it's anywhere
22   on the agreement.           But it was Mr. Barcroft's attorney,

23   John Skotnik.           He had been his attorney for a very long

24   time.        So it's my understanding that Mr. Skotnik was

25   involved with this but --

                                  CRC for Wells Reporting
                                         817-524-6644                            Exhibit
                                                        93528a42-9517
 555                                                                     Page    J    of'
                                                                             Page 105
                      MOTION HEARING - August 20, 2014

 1                   THE COURT:      But it's at issue?
 2                   MR. GIBBS:      Excuse me.

 3                   MS. LEE:     Yes, your Honor.

 4                   THE COURT:      I think it's conflicting
 5    testimony as to what we know, Mr. Barcroft is not an
 6    attorney.
 7                   MR. GIBBS:      He hired an attorney -- from
 8    what I have been told, he hired --

 9                   THE COURT:      And who -- which one of these

10    people met with Mr. Skotnik and discussed it?
11                   MR. GIBBS:      I did not meet with

12    Mr. Skotnik.   It's my understanding that Mr. Skotnik met

13    with Mr. Barcroft and they're the ones that drafted this
14    document.   That's the best of my understanding.

15                   THE COURT:      Barcroft, but Mr. Skotnik would
16    have no privity of contract with these people.                  I mean
17    -- and Mr. Barcroft,    if he did, in fact, practice law

18    without a license, he cannot enforce a contract that he
19    participated in.     He cannot get money for -- or unjust
20    enrichment for committing what is a criminal
21    misdemeanor, at least, in Texas.
22                   MR.   HARGRP~VE:    Your Honor, I believe that

23    what Mr. Howard is saying

24                   THE COURT:      I'm not sure --but if she's

25    relying on a contract     dra~1   up by someone who's not an

                             CRC for Wells Reporting
                                  817-524-6644
                                                   3J528a42-9517-4327-f
556                                                                       Page-----'....::3_
                                                                        Page 106
                     MOTION HEARING - August 20, 2014

 1    attorney, without consulting an attorney before she
 2    relies on this, don't you think that's sort of a
 3    problem?

 4                  MR. GIBBS:     But --

 5                  MR. HARGRAVE:      Objection, your Honor.                 What

 6    he's saying is, it's his understanding that Mr. Barcroft

 7    had an attorney to assist him.         Others have testified to
 8    the contrary, but he's
 9                  MS. LEE:     But he's not testifying.

10                  MR. HARGRAVE:      Not

11                  THE COURT:     Mr. Barcroft is not here.

12                  MR. GIBBS:     But why has Mr. Barcroft not
13    been served, your Honor.
14                  THE COURT:     I have no idea.          I'm not

15    running your case-- Or this case, sir.            I'm just
16    telling you

17                  MR. GIBBS:     Your Honor, I'm not the one --

18                  THE COURT:     -- the law.       He is practicing
19    law without a license, and he cannot enforce a contract
20    that brings money into his pocket for violating the law,
21    period.

22                  MR. GIBBS:     Well, your Honor, what I'm
23    saying is that I have been told is, Mr. Skotnik was an

24    attorney that worked --

25                  MS. LEE:     I object to the relevance.

                           CRC for Wells Reporting
                                817-524-6644
                                                 93528a42-9517-4327-
     557                                                               Page     ~1   of
                                                                                Page 166
                                 MOTION HEARING • August 20, 2014

..--..._.    1   THE STATE OF TEXAS)

             2   COUNTY OF TARRANT)

             3         I, Ashlee Wells, Official Court Reporter in and for
             4   the Probate Court No. 2 of Tarrant County, State of
             s   Texas, do hereby certify that the above and foregoing
             6   contains a true and correct transcription of all
             7   portions of evidence and other proceedings requested in
             8   writing by counsel for the parties to be included in

             9   this volume of the Reporter's Record, in the
            10   above-styled and -numbered cause, all of which occurred
            11   in open court or in chambers and were reported by me.
            12         I further certify that this Reporter's Record of
 ·~ 13           the proceedings truly and correctly reflects the

            14   exhibits, if any, admitted by the respective parties.

            15         I further certify that the total cost for the
            16   preparation of this Reporter's Record is $             Ja£1~aS     and
            17   was paid/will be paid by        Christy Lee
            18         WITNESS MY OFFICIAL HAND this the 15th day of
            19   September, 2014.

            20                              ~~~--..~~
                                           /s/ Ashlee R. Wells
            21                             ASHLEE WELLS, Texas CSR 8684
                                           Expiration Date: 12/31/15
            22                             Official Court Reporter,
                                           Probate Court Number 2
            23                             Tarrant County, Texas
                                           Fort Worth, Texas
            24
  ~.
            25

                                                                                Exhibit
                                       CRC for Wells Reporting
                 558                        817-524-6644                 Page __5._ of_._.~~
                                                             93528a4?
                                      CAUSE No. CV-14-41665

  PliNTE.xFOUNDATJON                              )                   TN THE DISTRICT COURT
          PLAINTIFF,                              )
                                                  )
  vs.                                             )                   336nt JUDICIAL DIS1'RJCT
                                                  )
  KENNETH VERN GrBBS; AND                         )
  CANDACE GIBBS WALTON; AND                       )
  HOWARD KIRK Groos,                              )
        DEFENDANTS.                                )                  FANNINCOUJ\lY, TExAS



                     AFFIDAVIT OF CANDACE WALTON IN SUPPORT
              OF REsPONSE TO M0110N FOR PARIJAL SUMMARY JUDGMENT

         J, Candace Walton, having been first duly sworn, state the following;

         1.      I am over the age of eighteen (18) years. 1 am Defendant in this Matter before
  the Court. I coofmn that all of the following facts are true and ~orrect and undisputed.

          2.    Albert Barcroft drafted the Contract for Sale of Land ("the CSL'') without
  assistance. Albert provided legal advice to Ken Gibbs and myself concerning the CSL.

         3.      Albert is not a licensed attorney, but Albert stated that as he went to law school
  he was able to draft up legal contracts and agreCinent

         4.     The legitimacy of the CSL was :in dispute prior to the onset of this li~gation.

         5.     Since: the execution of the CSL, there have been subsequent relevant dealings
  and agreements.

         Further the Affiant saith uot.


                                                        61·ttfaee-           ~)J.Jt&t.
                                                       Candace Walton

         SUBSCRlBED AND SWORN TO before me by Candace Walton on this                     ·z ll       day
  of September, 2014, to attest witness my hand and seal of office.


                                                ~      No~in and for the Stat~ of Texas
                                                       My Commission expires: 1P<) (s '2         "Ua
                                                                      fl1"" ·    ,ROBERT JUSTIN MOORE
                                                                                 MV COMMISSION EXPIRES
                                                                                      Apll26, 2016



                                                                                                     Exhibit
559
                                        NO. CV-14-41665

PENTEX FOUNDATION,                               §
              Plaintiff                          §
                                                 §
~                                                §
                                                 §
KENNETH VERN GIBBS, CANDACE                      §
GIBBS WALTON and HOWARD                          §
KIRK GIBBS,    Defendants                        §              3361h JUDICIAL DISTRICT

                          OBJECTIONS TO RESPONSE TO
                        MOTION FOR SUMMARY JUDGMENT

        COME NOW, Pentex Foundation, Plaintiff, and Joshua Unger, Trustee of

the GBU Friends and Associates Trust, Intervenor, file these their objections to the

Response to the Motion for Partial Summary Judgment, and, would show the

honorable court as follows:

        1.      Plaintiff and Intervenor object to the response as a whole for not being

timely filed. The motion, which in substance is only six pages long, was filed on

August 12, 2014. Due notice was given that the motion would be heard on

September 30, 2014. Defendants' response, if any, was due seven days prior to the

hearing. TEX. R. CIV. P. 166a. Defendants did not serve their response until after-

hours on September 25, 2014. 1 It is not timely and should be stricken in its

entirety.

        2.      Specifically, Plaintiff and Intervenor object to Defendant's Exhibit


        See, Plaintiffs Exhibit "A" attached hereto. The Response was also sent by facsimile
after 5:00p.m.
OBJECTIONS TO RESPONSE TO MOTION FOR PARTIAL SUMMARY JUDGMENT .... PAGE I




560
  "C". This exhibit purports to be a transcript of a hearing. The hearing did not

  involve Plaintiff or Intervenor, was not before this Court, and is interlocutory. It is

  not a final, unappealed order which might then potentially have some res judicata

  or collateral estoppel effect. It is additionally hearsay _2

          3.     Plaintiff and Intervenor object to the following portions of the

  Affdavit of Candace Walton: 3

         A.      "Albert provided legal advice to Ken Gibbs and myself concerning the
                 CSL." This contains no factual foundation and is conclusory. With
                 respect to Ken Gibbs, hearsay.

         B.      "Albert is not a licensed attorney, but Albert stated that he went to law
                 school he was able to draw up legal contracts and agreement." This is
                 hearsay.

         C.      "The legitimacy of the CSL was in dispute prior to the onset of this
                 litigation." This contains no factual foundation and is conclusory.

         D.      "Since the execution of the CSL, there have been subsequent relevant
                 dealings and agreements." This contains no factual foundation and is
                 conclusory.

  An affidavit must be made on personal knowledge, setting forth facts that would be

  admissible in evidence and affirmatively show that the affiant is competent to



          Frankly, this is irrelevant. What Defendants appear to be doing is blaming someone else
  for their own failure to get a lawyer. A lay person may represent himself. Am. Home Assur. Co.
  v. Unauthorized Practice of Law Comm., 121 S.W.3d 831,839 (Tex. App. Eastland 2003),
  modified, 261 S.W.3d 24 (Tex. 2008).

          It was submitted as Defendant's Exhibit "D". For convenience a copy is attached hereto
  as Plaintiffs Exhibit "B".
  OBJECTIONS TO RESPONSE TO MOTION FOR PARTiAL SUMMARY JUDGMENT .... PAGE 2




561
 testify on the matters stated in the affidavit. 4 A conclusory statement is a statement

 that does not provide the underlying facts to support the conclusion. 5 A legal

 conclusion stated in an affidavit must state facts which would be admissible in

 evidence. 6 It is clear that each of the above statements by Ms. Walton are mere

 conclusory statements, and are not competent summary judgment evidence.

         WHEREFORE, PREMISES CONSIDERED, Plaintiff and Intervenor pray

 that the Court sustain the objections set forth above.




                                             By:_,\~-\--~--r---------­
                                               Sco
                                               State Bar Number 18688900
                                               120 South Crockett Street
                                               P.O. Box 354
                                               Sherman, Texas 75091-0354
                                               e-mail smithlaw@airmail.net
                                               Facsimile (903) 870-1446
                                               Telephone (903) 868-8686




         TEX. R. CIV. P. 166a(f); AMS Construction Co. v. Warm Springs Rehab. Foundation,
 Inc., 94 S.W.3d 152, 156-67 (Tex. App.- Corpus Christi 2002)(ho1ding that affidavit of
 construction company president was conclusory and not competent evidence when it was not
 based on the president's knowledge but rather on what he had been told by other people.)

         Haynes v. City of Beaumont, 35 S.W.3d 166, 178 (Tex. App.- Texarkana 2000).

       Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984); Chhim v. University of
 Houston, 76 S. W.3de 210, 216 (Tex. App. -Texarkana 2002).
 OBJECTIONS TO RESPONSE TO MOTION FOR PARTIAL SUMMARY JUDGMENT .... PAGE 3




562
                                       CERTIFICATE OF SERVICE

          I do hereby certify that a true and correct copy of the above and foregoing document was served, by
 email pursuant to agreement compliant with TEX. R.CIV. P. 11, upon Christy L. Lee, Esq., of Law Offices
 of Christy Lee, P.C., 777 Main Street, Suite 600, Fort Worth, Texas 76102, and to Howard Kirk Gibbs, Pro
 Se, at 4360 Western Center Blvd., Suite 205, ~!.                      37, on this September 29,2014.




 OBJECTIONS TO RESPONSE TO MOTION FOR PARTIAL SUMMARY JUDGMENT .... PAGE 4




563
                                                                                                   Page I of I



Scott Smith

From:       "Laura Hogins" <lhogins@christyleelaw.com>
To:         <hkgibbs@gmail.com>; <smithlaw@airmail.net>
Sent:       Thursday, September 25,2014 5:19PM
Attach:     Signed Response to Motion for Partial Summary Judgment (Gibbs).PDF
Subject:    Response to Motion for Partial Summary Judgment
Hello,

Attached is Ken Gibbs and Candace Walton's Response to Plaintiff's and Intervenor's Motion for Partial
Summary Judgment, which we are filing in the matter of Pentex Foundation vs. Gibbs, et al.

Please let me know if you have any questions.

Thanks.

Laura



LAW OFFICES OF CHRISTY LEE, P.C.
Laura Hogins, Paralegal
225 East Fireweed Lane, Suite 200
Anchorage, AK 99503
(907) 339-9931 Office
(800) 437-7901 Fax
lhogins@christvleelaw.com




                                                   •    PLAINTIFFS
                                                   ij     EXHIBIT
                                                   i        A
                                                   I    10--29-14




564                                                                                                  9/27/2014
                                                                              LAW OFFICES OF CHRISTY LEE                                  #0255 P.OB4/0B4
~9/25/2014    18:18 9073399980




                                                                CAUSE No. CV~ l'~-4 I 665

               PJJN7ax .Folm•AT101"f                                          )                       'lN TI-lE iJISTR~CT CoiJRT·
                          PLA1NT£FF,                                          )
                                                                              )
                                                                              'i
                                                                              }
               K.F.J:\1<-:Ern V~'-1 GrB'/3S;·AM1J                             \
                                                                              I"
               CAJ>,:l)tjCE G!BES W..u.:oN; ANJ'l                             )
               ll<J~'Alill Krm<. Gmas,                                        )
                          D.EFENDA~T.S.                                       }


                                           AFFlpA·vti;tW CANDACE:.WALTON lN Suri>oRT
                               !J:V l;U.sli'O.~Sf. TP M9JJON:~'Oit PAJ(fJ:AL StJI'o'L'-iARV JlJDGMtl\"J'
                                  •                   r                           .=:.   •·•••,   ,     .        •




                    . L          l a.m. over~ agc.of eightecrr (:8} y~ass. 1 :m~ D~.fe,.d~r i'n tp.is 1\"I<!n:er before
               the Criur:t: I co:Jfltm mat ~n offuc:io'llowin'g f.lt:ts a..-c true and y~IT<l~ and u:J.:dispnted.

                       2.    i\lb~m ·.B.arcroft 'dr<~"tcd ·th{; Coo.tnu;.t for Sale . ...,t: .Lll!.ld (.'~'l.e CSL '')                wHhQ!..i1
               as~i~.~c;e. AlWl:t ~ro\").de41agal.advicll
                                  .                 . . to K~n C3iboo . and.myS~~tf
                                                                           .
                                                                                           conceming u1c CSL..

                          3.          Alberti;; not a ·Jit;cnsc~ :n~orney; but Albert stated ~t as he went ta ·l:t\V school
               fll: was   able to draft up leg;:.'! contract<: and· a~eme:tt.

                          4.          the leg{d:ma9y tl ±.e: CSL \VM fu &.'ipute .prior to th~ I}J?S~t '1f ¢is H~gari~..
                          j_          Sinc~.::.1he·   txec!J!Ioc. Of the CSL, there have b.-.'Cll subsequent r:eli:l'iiam             &.;.a~bgs
               and a.gr::c7:J.teJlts.




                                         •      PLAINnFPS
                                         i       EXHIBIT
                                         I          B

             565
                                         I 10-29-14                                                                   -;o,~·tY.:!t-       !
                                                                                                                      '.-~~·-- . ._.. _......_~
                                                                                                                                                    ,;
                                                                                                                                                  (l,     .
                                                                                                                                                              ·~.
                                                                                                                                      .                        I
                                                                                                                                                         -~·--....
                                                                                                                                                                    .
                                                                                                                                                                        .......,_
                                        CAUSE NO. CV -14-41665

  PENTEX FOUNDATION                               )
        PLAINTIFF,                                )
                                                  )
  vs.                                             )
                                                   )
  KENNETH VERN GIBBS; AND                          )
  CANDACE GIBBS WALTON; AND                        )
  HOWARD KIRK GIBBS,                               )
        DEFENDANTS.                               .)                 FANNIN COUNTY, TEXAS


                       NOTICE OF WITHDRAWAL OF MOTION TO DISMISS

  TO THE HONORABLE JUDGE OF THE COURT:

          COME NOW, KENNETH "Ken" GIBBS and CANDACE "Candy" WALTON,

  Defendants, by and through their Counsel of Record, Law Offices of Christy Lee, P.C., and

  notice the Court of the following:

          Ken and Candy now withdraw their Motion to Dismiss, filed in this matter on June 23,

  2014.

                                                Respectfully submitted,
                                                LAW OFFICES OF CHRISTY LEE, P.C.




                                                Christy L. Lee
                                                Texas State Bar No. 24052302
                                                777 Main Street, Ste. 600
                                                Fort Worth, Texas 76102
                                                (817) 504-6075
                                                (800) 437-7901 -Fax
                                                clee@christyleelaw.com

                                                AITORNEY FOR KENNETH GIBBS AND
                                                CANDACE WALTON



  NOTICE OF \VIll!DRAWAL OF MOTION TO DISMISS                                  CAUSE NO. CV-14-41665
  WALTON AND GIBBS I'S. MILLER, ETAL.                                                            -I-

566
                                          CERTIFICATE OF SERVICE

 I hereby certify that a true and correct copy of the above and foregoing document was delivered,
 pursuant to Texas Rules of Civil Procedure, to the following parties on this 261h day of
 September, 2014:

 Pentex Foundation and                            Via email per Rule 11 Agreement
 GBU Friends and Associates Trust                 Via fax
 c/o Scott Smith
 120 South Crockett Street
 Shennan, TX 75091

 Howard Kirk Gibbs                                Via email per Rule II Agreement
 9929 Crawford Fann Drive
 Fort Worth, TX 76244




                                                        Christy L. Lee




 NOTICE OF Wm IDRA WAL OF MO'riON TO DISMISS                                  CAUSE No. CV-14-41665
 WALTON AND GIBBS VS. A·IILLER, ET AI..                                                         -2-


567
                                           CAUSE NO. CV-14-41665

      PEN'I'EXFOUNDATION                              )
             PLAINTIFF,                               )
                                                      )
      vs.                                             )
                                                      )
      KBNNB'm VERN GIBBS; AND                         )
      CANDACE GmBS WALTON; AND                        )
      HOWARD KIRK Gmas,                               )
           DEFENDANTS.                                )                  FANNIN COUNTY, TEXAS

                       FIRsT SUPPLEMENT TO MOTION TO SHOW AUTBORITY
      TO THE HONORABLE JUDGE OF THE COURT:

              COME NOW, KENNETH "Ken" VERN GffiBS and CANDACE "Candy" GffiBS

      WALTON, Defendants, by and through their Counsel of Reco~ Law Offices of Christy Lee,

      P.C., and file this First Supplement to their Motion to Show Authority, and would show the

      Court, as follows:

                                           I. ADDfinONALFACT&

              I.      On July 8, 2014, Scott Smith, Attorney for Pentex Foundation ("Pentex") emailed

      counsel the English version of Pentex's Articles of Incorporation. See Exhibit A.

              2.      On July 31,2014, a hearing on Ken and Candy's Motion to Show Authority was

      held before Tarrant County Probate Court No.2, in Cause No. 2005-0000126-2-D. Walton and

      Gibbs vs. Miller, et al. Scott denied recaiJing who tendered payment of his initial $10,000

      retainer; denied ever speaking to Mario Guilermo, the alleged agent of Pentex who purportedly

      retained him; denied having copies ofthe Minutes ofPentex's board meetings; denied speaking

      or communicating with anyone from Pentex; and stated, "... like most attorneys, I said, if it will

      pay me, I will do it." See Exhibit B, transcript ofthe proceedings, p. 11-12; p. 22-23.

              3.      On August 5, 2014, Scott advised the Court that the retainer had been paid in



      FIRsT SUPPLEMENT MOTION TO SHOW At.rrHORriY                                 CAUSE NO. CV-14-41665
      WALTON .AND GIBBS~ MILLER, El' AL.                                                             -1-

568
      equal sums of$5,000 each by Pentex Royalty Trust and Albert Barcroft. See Exhibit C, p. I.

             4.       Attached to Scott's letter to the Court was a copy of the alleged Minutes of the

      Board of Directors' Meeting of Pentex Foundation, which addressed the alleged authorization of

      Scott's engagement in this matter. The Minutes were dated August 4, 2014, more than four (4)

      months after Pentex began litigation in this matter, and three (3) months after Scott began

      representing Pentex. See Exhibit C, p. 2-3.

              5.      On August 6, 2014, Tarrant Probate Court No.2 ruled that the Motion to Show

      Authority would be continued, pending further information. See Exhibit D. To date, there has

      been no final judgment.

              6.      As of September 25, 2014, according to the Texas Comptroller of Public

      Accounts, the following are not registered as entities in the State of Texas: Pentex Foundation;

      Pentex Royalty Trust; Renhaw, Inc.; and GBU Friends and Associates Trust. See Exhibit E.

              7.      An Affidavit in Support of Motion to Show Authority. See Exhibit F.

                                                    Respectfully submitted,
                                                    LAW OFFICES OF CHRISTY LEE, P.C.




                                                    Christy L. Lee
                                                    Texas State Bar No. 24052302
                                                    777 Main Street, Ste. 600
                                                    Fort Worth, Texas 76102
                                                    (817) 504-6075
                                                    (800) 437-7901- Fax
                                                    clee@christy lee law .com

                                                    ATTORNEY FOR KENNETH GIBBS AND
                                                    CANDACE WALTON




      FIRST SUPPLEMENT MOTION TO SHOW A UTIIORITY                                  CAUSE No. CV-14-41665
      WALTON AND GIBBS VS. MILLER, ET AL.                                                            -2-

569
                                              CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the above and foregoing document was delivered,
      pursuant to Texas Rules of Civil Procedure, to the following parties on this 26th day of
      September, 2014:

      Pentex Foundation and                                Via email per Rule 11 Agreement
      GBU Family and Friends Trust                         Via fax
      c/o Scott Smith, Attorney of Record
      P.O. Box 354
      Sherman, TX 75418

      Howard Kirk Gibbs                                    Via email per Rule 11 Agreement
      9929 Crawford Farm Drive
      Fort Worth, TX 76244




                                                           Christy L. Lee




      FIRST SUPPLEMENT MOTION TO SHOW AUTHORITY                                  CAUSE No. CV -14-41665
      WALTON ANDGlBBS VS. MtLI..ER, ET Al..
                                                                                                    *3*

570
      .   .   .




                  PUBLIC DEED NUMBER NINE TiiOUSAND SEVEN HUNDRED SEVEN1Y SEVEN - - - - -

                  --- ------ - - - -- -- -- --- - - -- fY,777). - --- - - ---- - -- -- ------ --- - - --- --- - - - - - - - -

                  (Sgd) IRINA ABREGO DE ESPINOSA by PANAMA. FOUNDERS SERVICES INC.- - •

                  A!exi Guerra Morales (Witness).-- -- Zoraida de Vergan (Witness)---- MAJUO VELASQUEZ

                  CHIZMAR. Second Notary Public of the Circuit of Panama.- - - - - - - - - - - - - - - - - - - - - - - - - - - -

                  --- - ---- - ---- - -- -- --ARTICLES OF INCORPORATION--- - ----- --- - - - -- - -- - -
                  - - - - - - - - - - - - OF THE PRIVATE INTEREST FOUNDATION NAMED - - - - - - - - - - - -
                  - - - - - - - - - - - - - - - - - - - - - - - - PENTEX FOUNDATION - - - - - - - - - - - - - - - - - - - - - - - -
                  The undersigned, IRINA ABREGO DE ESPINOSA, female, Panamanian, of legal age, married,

                  resident of this city, holder of personal identity cud number eight - seven hundred and two-one

                  thousand three hundred and seventy two (8-702-1378) acting on behalf of PANAMA FOUNDERS

                  SERVICES INC., Panaman.ia.n corporation duly registered under Microjacket six hundred eight
                  thousand two hundred and sixteen (608216), Document one million three hundred eleven thousand

                  two hundred and eighty (1311280). Acting as founder of the Private Interest Foundation named

                  PENTEX FOUNDATION, hereinafter referred to as THE FOUNDATION, by this means
                  incorporates a Private Interest Foundation as a corporation in accordance with Law Twenty Five (25)

                  of June twelve (12) of the yea.r one thousand nine hundred ninety five (t 995), of the Republic of

                  Panama, with the following characteristics:- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

                  ~:         NA.M.&      The name of the foundation is PENCEX fOQNDADQN. - - - - - - - - - - - - - -

                  SECOND: INITIAl. CAPITAL                       The initial cllpital of the Foundation io TEN THOUSAND

                  DOLLARS (US$10,000.00}, legal tender of the United States of America.                                 The Foundation

                  endowment may be increased at any time by the Founder or by any other person.- - - - - - - - - - - - - -
                  TlDRD: THE FOUNDATION COUNCIL. The Foundation Council shall be solely composed

                  by: MANUEL GONZALEZ (PRESIDEN'I), GINA KARINA CELEMIN (SECRETARY),
                  ANA LAURA OVALLE HORNA (l'REASURER), all of them don-Uci!ed at Aquilino De La
                  Guardia Avenue and forty seven (47) street, seven (7) suit, Panama, Republic of Pa11atni.--- ----- -

                  From the By-laws of the Foundation Council: - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - -
                  a. The Foundation Council is the supreme authority of the Foundation. - - - - -- - - - -- - - - - - - - - - - -

                  b. The Foundation Council !JUlY be composed of natural or legal persons. -- - - - - - - - - - - -- - - - - - - -




                                                                                                                                           Exhibit
572                                                                                                                         Page     ;)
      c. The members of the Foundation Council are designated initially by the Founder. The election or

      replacement of a member of the Foundation Council, whether principal or alternate, due to

      resignation, disability or death, will require a simple majority of the votes of the rest of the members

      of the Council. If there wasn't any other member in the Foundation Council, or the rest of the

      members were disabled, the Protector shall have the right to appoint the new members of the

      Foundation CounciL - - - - - - - - - - - - - - - - - - - - -- - -- - - - -- - • - - - - - - - - - - - - - - - - - -- -- - - - - - -

      d. The Foundation Council shall exercise its functions for a period of ten (10) years. ------ -------

      e. The l:ioundation Council shall be m chatge of the administration and representation of the

      Foundation, without limits, before third puties and especially before national and forcign

      administrative and judicial authorities - - - - - - - - - - - - - - - - - - - - - -- - - - -- -- - -- - - - - - - - - - - -

      f. The Foundation Council could delegate to one or various of its members or to a third party, its

      Powers to issue the Regullltions of the Foundation, as well as its administrative and representation

      Powers for specific purposes, in which case, it will grant power to sign and oblige the Foundation.

      g. If the Foundation Council is composed of more than one member, it shall be constituted in its own

      right and it shall dect a President, a Secretaty and any other officer. Its agreements will be valid if all

      of the members have been properly notified and if the majority of members are present. The

      agreements of the Foundation Council shall be approved with the simple majority of the members

      pres\!tlt. In Ci\se of equality, the President sh:ill have the decisive vote. - - --- · - • - · -- - - - - - - - · - - - -

      h. If the Foundation Council is composed of two members, its agreements shall require a unanimous
      decision. - --- . - . -. - - - - . - •. - - ..• - ... - ....... _ . ___ . __ . ____ .. ___ ... _ . ___ . __ . _ .. _

      i. If the Foundation Council is composed of one member only, he/ she shall make the decisions and

      issue resolutions on       his/ her own. The pemon designated for that pUipOse by the Board of Directon;
      of this sole member should sign said resolutions. - - . - - - . - -. - . -. - - . - - - . - - . - . - . - - - - -- - - - - .

       j. The agreements of the Foundation Council shall be stated in Minutes, which shall be signed by the

       Secretaty of the meeting who will write it. - - - - -- - - - . - - - - - - - - - - - - - - - - • - .... - - - - - - -

      k. 'Ibe Foundation Council shall meet at rhe request of the President, in the domicile of the

       Foundation or in any other place which the Foundation Council may determine.---------- ------

      l. The agreements of the Foundation Council could also be detennined by means of a circular letter,

      in which case the decision should be unanimous. - - - .. - - - - - - - -- - - - - - - - - - - - . - - - . - . - - • - - - -

      fOURTH: DOMICILE. The domicile of the Foundation is Avenida Aquilino De La Guardia and




                                                                                                                                            Exhibit
573
                                                                                                                       Page __"3::;.__ of
------------------------------------------------------
            '




                   callc cuarenta y sicte (47), Ocean Business Plaza Building, fifteenth (15) floor, office seven (7), City of

                   Panama, Republic of Panama. By means of an agreement of the Foundation Council, the domicile of

                   the Foundation may be moved, at any moment to another place in Panama or abroad. All legal

                   relationships derived from the constitution or existence of the Foundation will be subject to the laws

                   in effect on the location of its domicile. The legal courts in the location of its domicile shaJI rule the

                   Foundation. In the event of a domicile transfer to another place, the Foundation shall continue

                   subject   to   the provisions of the Private Interest Foundation Law of the Republic of Panama, insofar

                   as in the new domicile does not exist legal provisions which expressly state another legal regime for

                   Private Interest Foundations which are transferred to said jurisdiction. - - - - - -- - - - -- - - - - - - - - - - -

                   FIFTH: RESIDENT AGENr. The Resident Agent of the Foundation is CARLES-BARRAZA

                   ABOGADOS, practicing lawyers, who accept the office, domiciled at Avenida Aquilino De La
                   Guardia and caUe cuarenta y siete (47), Ocean Business Plaza Building, fifteenth (15"') Floor, Office

                   seven (7), City of Panama, Republic of Panama. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

                   SDr.D:!: PURPOSES. The purpose of the Foundation is to hold assets, manage and administer the
                   assigned patrimony according to the existing terms and regulations. It could also pay for educational

                   expenses, sustenance, preparation and assistance, as well as support in general, or other similar help,

                   of one or various members of one or various funili.es by means of scholarships or programs of study

                   determined in the Regulations. The Foundation tnay benefit natural or                          leg:~!   persons or organizations

                   of any nature and it may take aU the necessary provisions for the ordered succession of its equity. To

                   accomplish its putposes, the Foundation should preserve, manage and invc5t the patrimony properly.

                   The Foundation could not pursue profit. However, it may carry out commercial activities on a non-

                   custotruuy basis, or exercise its rights on titles representing capital in the mercantile corporations that

                   belong    to   the patrimony of the Foundation, as long as the results or economic product of such

                   activities will be exclusively dedicated to the purposes of this Foundation. It may also dedicate to any

                   other licit activity allowed         to   this type of entities, as the Founder or the Foundation Council may

                   determine. - - . - - - - - - - - - - - - - - - - - - - - - - - - - • - - - - . - - - . - - - - - . - - - _- . _. _ • - _______ .. ___ _

                   SEYENTH: BENEFICIARIES. (A) The Founder, at the moment of instituting the Foundation,
                   or subsequently the Foundation Council, may create a private document named "Regulations"

                   whereby the beneficiaries are designated and all matters concerning them are determined. The

                   Foundation Council shall assign the patrimony or the product of the Foundation, totally or partially to




       574                                                                                                                               Page __1..\.....:.__
      •




          one or another of the beneficiaries, or to several of them, in accordance to what is stated in the

          Regulations. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - • - - - -

          (B) The distribution to one or several designated beneficiaries, as well as the time and the amount of

          this distribution shall be subject to what is established in the Regulations. - - - - - - - · - - - - - - - - - - - - -

          (C) It i.~ expressly stipulated that the beneficiaries are not owners or creditors of the Foundation, so

          they cannot claim any other rights than those conferred in the Foundation Chllrter, the Regulations

          and/ or the Agreements of the Foundation Council. - - - - - - - - - • - - - - - - - - - - - - - - - - - - - - - - - - - - -

          f;IGHTH:              AMENDMENTS TO THE FOUNDATION CHARTER. The Foundation

          Council may amend the Foundation Charter as follows: - - - - -- - - - -- - - - - - - - - -- - - - - - - - - - - -

          Only the Foundation Council rruty amend, remove or declare inapplicable one or more dispositions of

          the Foundation Charter; change or eliminate all or· any of the beneficiaries, name or add new

          beneficiaries, increase, clitninish or in any other way modify the benefits of all or any of the

          beneficiaries, add new assets to the patrimony of the foundation or reform in any other way the

           Foundation Charter. - - - - - - - - - - - - - - - - - - -- -- - - - - -- - - - - - -- - - - - - - - - - - - - - - - - -- -

           NINfH: DURATION. The Foundation shall be perpetual and it may only be dissolved in

           accordance with the Foundation Council or based on the tennination of the Foundations Law.

          TENTH: DISTRIBUTION OF THE BENEFITS. The Foundation Council may distribute the

           capital or interests earned of this Foundation in compliance with what is established in the

          Regulations, which may be modified at any time by the Founder or the Foundation Council. - - - - - - -

           ELEVENTH: ANNUAL REPORT. The Foundation Council shall render an annual report on

           their administration to: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

           (a) The Founder, as long as he/ she exists. - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - . - - -

           (b) The beneficiary or beneficiaries, when the Founder has died. - - - - - - - - - - - - - - - - - - - - - - - - - - -

           (c) The protector, if any.-------------------------------- --- - ---------- -----------

           lf the annual repon is not objected within a ninety-day (.90) term period, counted from the date it is

           received, it shall be considered approved. After said period or approval of the report, the members of

           the Foundation Council shall be exempted of any responsibility for their administration. But said

           approval shall not exempt them from any damage to the beneficiaries or third parties with an interest

           in the Foundation, due to negligence or fraud in their administration of the Foundation. -- -- -- ----




575
  '




      TWELFfH: REMOVAL OF THE FOUNDATION COUNCIL. The Founder or the
      Protector, if any, may remove the Foundation Council. Funhennore, the Founder or the Protector

      may designate or add new members to the Foundation Council. - - - - - - --- - - - -- -- - - - - - - - - - - - -

      THIRTEENTH: OBUGATIONS AND DUTIES OF THE FOUNDATION COUNCIL.
      The Foundation Council will have the following obligations and duties: - - - - - - - - - - - - - - - - - - - - - -

      a. Manage the assets of the Foundation in accordance with these Foundation Charter or its

      regulations. - - - - - - - - - - - - - - - - - - - -- -- - - - - - - - - - - - - - - - - . -- - - - - - -- - - -- - _ - - - - - - - -- __

      b. EKecute acts, contracts or          le~    business that ate adequate ot necessary to accomplish the purposes

      of the Foundation; include in said contracts, covenants and other instruments or obligations all the

      clauses and conditions that are necessary or convenient to adjust to the purposes of the Foundation,

      whlch shall not be against the law, the moral, good M.bits or the public peace. --------- ----- ---

      c. lnform the beneficiaries of the Foundation about the condition of the patrimony of the

      Foundation, as it may be established in the Foundation Charter m its Regulations. - -------------

      d. Trans fer to the beneficiaries of the Foundation the 11ssets or resources that had been instituted                                   111

      their favor in the Foundation Charter or its Regulations. - - - - - --- - - - -- - - - - - - -- - - - - - - - - - - - -

      e. Carry out all acts or contracts that are allowed to the Foundation, in accordance with Law 25 of

      June 12'\ 1995, and other applicable. legal dispositions or regulations.------------------------

      FOURTEENTH:                     PROTECTOR - PROFESSIONAL ADVISOR - AUDITORS. The
      Foundation Council may appoint in the regulations an entity of control, formed either by natural or

      legal persons. which         may    be c:alled Protectot, Professional           Advi.~or,   Auditot or a •Unilar name, wh.ich

      may carry out any of the following attributions: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - . - - - . - - - - -

      a) Overlook that the Foundation Council complies with the purposes of the Foundation and that the

      rights and interests of the beneficiaries ate being protected;--------------- -- -- ----- - - -- -- -

      b) Demand an account report from the Foundation Council;------------------------------

      c) Modify the purposes or objectives of the Foundation, when these are impossible or very difficult to
      meet; - - - - - - - - - - - . - - - - - _ - _- - __ . _____________________________________________ _

      d) Designate new members to the Foundlltion Council due to temporary, permanent or accidental

      absence, or due to the extinction of the term period for which they were appointed; - - - - - - - - - - - --

      e) Appoint new members to replace those existing in case of temporary or accidental absence;

      increase or reduce the number of members of the Foundation Council; - - - -- - -- - - - - - - . -- - - - - - -




576                                                                                                                          Page
      £) Countersign the actions taken by the Fmmdation Council, in accordance with the Foundation

      Charter or its Regulations; - - - - - - - - - - - - • • - - · • - - - - - - - - - • - - - - - - - - · - - · - · - - - - - - - - · · · · · ·

      g) Protect the assets of the Foundation and supervise that they are used according to the purposes and

      objectives stated in the Foundation Charter. - - - - - - - - - - - - - · · - · · • - · - ~ • - - - - - - - - - - - - - - - - -

      FIFTEENTH: LIQUIDATION AND DISSOLUTION. A) The Foundation Council is
      authorized to dissolve the Foundation and to appoint one or more liquidators if they deem it

      necessary. - - - - · - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - · - - - - - - - - - - - - - • - - - -

      (B)        In the event o£ dissolution of the Foundation, and after having paid aU its debts or obligations,

      liquidation will continue in accordance with the dispositions established in the Regulations regarding

      the beneficiaries. The resolution issued by the Foundation Council to dissolve it shall be duly

      registered in the Public Registry of the Republic of Panama.-----------------------·-------

      The Foundation may also be dissolved due to the following causes: - - - - - -- - - - - ·- - - - - - · ·- · · - - -

      a) Due to non-compliance with the purposes for which it was established or because it is impossible

      to carry them out; - - - - - - - - - - - - - . - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

      b) Due       to   insolvency, interruption of payments or for having judicially declare the meeting of

      creditors; - - - - - - - - - - - - - - - - - - - - - - - - · - - - - - - - - - - - - - - - - - - - - - - - - - - - - · - - - - - - - - - - - - - -

      c) Due to the loss or total extinction of the assets of the Foundation. - - - - - - - - - - - - - - - - - - - - - - - -

      SIXTEENTH: THE REGULATION. The Founder and the Foundation Council are authorized
      to issue the Regulations of the Foundation at the time the Foundation is created or later. It should

      include: - - ·------------ .. ---.------- ---- ---------- - -.----- -------- .. ---------

      1. The manner in which the assets of the foundation will be administered. - . - - - - - - - - - - - - - - - - - - -

      2. The benefits of the Foundation. - - - - - - • - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - --
      3. 1be manner in which the beneficiaries may be excluded or added.. - - . - . - - ........ - .... - - ..

      4. The benefits that will correspond to the beneficiaries. - - - - . - - - - . - - . - . - - - - - - .... - - - - - ...

      5. The manner in which the Foundation Council shall inform the beneficiaries about the patrimony of
      the Foundation. - - - - - -- - .. - -- .. - - ... - . - .. - ... - ....... - .......•.................

      6. The manner in which the beneficiaries shall be given the assets or goods that hlld been established

      in their favor. - - - - - - - - - - . - - . - - - - - - - - - - - . - - - - - . - . - .....••.......................

      7. The fllculties of the Foundation Council, specific or complementary, to accomplish their purposes.

      8. The appointment of a Protector or any other entities of conttol. - - - - - - . - - - . - . - - - . - - - . - - - - -




577
  ..



       9. The manner in which liquidation of the patrimony of the Foundation shall be carried out in case of

       dissolution of the Foundation. - - - - - - - - - - - - - - - - - - - - - - - - - - - - • - - - - - - - - - - - - - - - - - - • - -

       SEVENTEENTH: NOTICES. Notifications required by law or the Regulations shall be made in

       any newspaper of broad circulation in the Republic of Panama. - - - - - - - - - - - - - - - - - - - -- - - - - - - -

       EIGHTEENTH: LEGAL REPRESENTATIVE. If the Foundation Council is composed of

       more than one member, the Legal Representative shall be the Pres.ident. The Secretary may also hold

       that representation in the absence of the President, or any other natural or legal person that the

       Foundation Council may designate for that purpose. 1f the Foundation Council is composed of one

       sole member, the Legal Representative shall be that member. The Legal                                          Represen~tive          shall be

       appointed and removed by the Foundation Council - - - - - - - -- - - - - - - - - -- - - - - - - - - - - - - - - - -

       NINETEENTH: OBLIGATIONS TOWARD TIDRD PARTIES. The signature of the Legal

       Representative of the Foundation. when the Foundation Council is composed of only one

       corporation, or the joint signature of any two (2) members of the Foundation Council when it is

       composed of more than one person will bind the Foundation in connection with any act, transaction

       or business, without detriment to the formalities described in Article Third of these Foundation

       Charter. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

       TWENIIETH: ARBITRATION. Controversies of any kind, coming from or in relation to the
       Foundation, these Foundation Charter or its regulations, as well as its interpretation, application,

       execution and termination, sW be resolved by arbitration. This arbitration shall comply with the

       regulations of the Conciliatory and Arbitration Center of the Chamber of Commerce, Industry and

       Agriculture of Panama. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

       TWENTY-FIRST:                    CHANGE OF JURISDICTION. When the Foundation Council or the
       Protector, if any, consider it necessary, they could, at their own discretion. transfer the Foundation to

        the jurisdiction of another country after complying with the necessary legal requirements. - - - - - - - -

       TWENTY-SECOND; LIQUIDATION. In the event of liquidation, the assets will return to the

       patrimony of the Founder or in                   his/ her absence to the person designated in the regulations or its
       amendments. - - - - - - - - - - . - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

       TWENTY-THIRD: SEAL. The Foundation could, if it deems it necessary, adopt its own

        Foundation seaL - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -




                                                                                                                                                _______Exh.

578                                                                                                                                  Page           %
  ?   •·•· • . •




                   This document has been signed by the Founder this twenty first (21") day of May of the year two

                   thousand and eight (2008). • - - - - · - - · - - - - - · · · · · - · - · · · • - - - - - - - - - - - - - - - - - - - - - · - · - · · - -

                   (Signed) IRINA ABREGO DE ESPINOSA by PANAMA FOUNDERS SERVICES INC ••

                   Founder.- - · - - · - - - - · - - - - · - - - · - · -- · - - - - - -- - · - - - - - ·- - - - - - - - · - · - - - · - · - ·- - - · · - · - -

                   Document prepared and countersigned by CARLES.BARRAZA ABOGADOS, practicing lawyers.

                   THE ABOVE TALLIES well and faithfully with its original. I issue these presents which I                                               sea~      sign

                   and mark in the city of Panama this twenty first (21 ·~ day of May of the year two thousllnd and eight

                   (2008). - - - - . - - - - - - - - - - - - - . - - . - - . - - - - - - - - - - - - - - - - - - - - - - - . - - . - - - - - - - - - - - - - . -

                   =~==~=======~==~~======~=~~================


                   OFFICE OF THE PUBLIC REGISTRY PANAMA

                   The present document was presented at the Public Registry of Panama

                   Province: Panama                                                              Date and Hour: 2008/05/28 18:11:20:9

                   Volume: 2008                                                                  Entry: 99638

                   Presented by: !DANIA ZOTO                                                                ID Card: 8-348-91

                   ljquidation No.:7008472866                                                    Fees: 60.00

                   Admitted by: THAL

                   (Sgd.) 1b.ere appears a signature.

                   (There appears the seal of the Public Registry)

                   THE FOREGOING DOCUMENT WAS REGISTERED AT THE PUBLIC REGISTRY
                   Microfilm Section (Me•cantile)

                   Microjacket                    2953()

                   Document                       1354893
                   Fees B/.                       60.00

                   Panama, May 30"', 2008.
                   (Sgd.) There appeats a signature.




579
                  EXCERPT MOTION HEARING - July 31, 2014

                          REPORTER'S RECORD
                        VOLUME 1 OF 1 VOLUMES
                TRIAL COURT CAUSE NO. 2005-0000126-2-D


                                         )
       IN RE: ESTATE OF BERT             ) IN THE PROBATE COURT
       HUGHES GIBBS, DECEASED;           )
                                         )
       CANDACE WALTON AND                )
       KENNETH GIBBS,                    )
                                         )
                 Plaintiffs,             )
                                          )
       vs.                                ) COURT NO. 2
                                         )
       BEVERLY MILLER,                   )
       INDIVIDUALLY, AND AS               )
       TRUSTEE OF THE GWB                 )
       FRIENDS AND FAMILY TRUST,          )
       ALBERT BARCROFT,                   )
       INDIVIDUALLY AND AS LEGAL          )
       REPRESENTATIVE OF PENTEX           )
       ROYALTY TRUST AND PENTEX           )
       FOUNDATION, DANNY UNGER,           )
       AS TRUSTEE OF GBU FRIENDS          )
       AND ASSOCIATES TRUST, AND          )
       HOWARD KIRK GIBBS,                 )
                                          )
                 Defendants.              ) TARRANT COUNTY, TEXAS


                                  *****
                               ***EXCERPT***
                           ***MOTION HEARING***
                                    *****
             On the 31st day of July, 2014, the following
      proceedings came on to be heard in the above-entitled
      and numbered cause before the Honorable

      Patrick Ferchill, Judge presiding, held in Fort Worth,

      Tarrant County, Texas;



             Proceedings reported by machine shorthand.

580                        CRC for Wells Reporting
                                817-524-6644
                                                              Page 2
                 EXCERPT MOTION HEARING - July 31, 2014

 1                     A P P E A R A N C E S
 2

 3    Ms. Christy Lee                   Ms. Sharron Cox
      Attorney at Law                   MOSS & COX
 4    SBOT NO. 24052302                 SBOT NO. 24006599
      225 East Fireweed Lane            518 Main Street
 5    Suite 200                         Bonham, Texas 75418
      Anchorage, Alaska 99503           Phone:   (903) 583-3101
 6    Phone:   (907) 339-9931           ATTORNEY FOR DEFENDANT
      ATTORNEY FOR PLAINTIFFS           BEVERLY MILLER
 7

 8
                  -AND-
 9    Mr. Thomas Scott Smith
      Attorney at Law
10    SBOT NO. 18688900
      P.O. Box 354
11    Sherman, Texas 75091
      Phone:   (903) 868-8686
12    ATTORNEY FOR PENTEX
      FOUNDATION
13

14

15

16

17

18

19

20

21

22

23

24

25


581                       CRC for Wells Reporting
                                817-524-6644
                                                                    Page 3
                    EXCERPT MOTION HEARING - July 31, 2014

 1                                I ND E X
                                VOLUME 1
 2                      (EXCERPT MOTION HEARING)
                                                             Page   Vol.
 3
      JULY 31, 2014
 4
      Beginning of Proceedings                                 4      1
 5
      Opening statement by Mr. Smith                           8      1
 6    PLAINTIFFS' WITNESSES

 7                               Direct                              Vol.
 8    SCOTT SMITH                   9                                 1

 9

10    Court's Ruling.                                          58     1

11    End of Excerpt.                                          58     1

12    Court Reporter's Certificate.                            59     1

13

14

15

16

17

18

19

20

21

22

23

24

25


582                          CRC for Wells Reporting
                                  817-524-6644
                                                                            Page 4
                  EXCERPT MOTION HEARING - July 31, 2014

 1                     P R 0 C E E D I N G S
 2                  THE COURT:    All right.         Ashlee, we're going

 3    to go on the record in Cause No. 2005-000126-2-D.                    And

 4    this is an ancillary lawsuit, and the particular style

 5    as it was originally filed is, Candace Walton and
 6    Kenneth Gibbs, plaintiffs, versus Beverly Miller,

 7    individually, and as a trustee of GWB Family and Friends

 B    Trust, Albert Barcroft, individually, and as a legal

 9    representative of Pentex Royalty Trust and Pentex

10    Foundation, Danny Unger, as trustee of GBU Friends                         is
11    that supposed to be GRU or GBU?

12                  MS. LEE:     It's GBU, your Honor.

13                  THE COURT:    GBU Friends and Associates

14    Trust, and Howard Kirk Gibbs, defendants.

15                  And let's get everybody's name who's

16    appearing    who's appearing here at our counsel tables.
17    Will you begin, sir, over here to the left?

18                  MR. GIBBS:     Yes, sir, I'm Howard Gibbs.
19                  MS. COX:     I'm Sharron Cox, representing
20    Beverly Miller, the trustee.
21                  MR. SMITH:     Your Honor, my name is
22    Scott Smith, I'm here appearing for the special
23    appearance, Pentex Foundation.

24                  MS. LEE:     And, your Honor, I'm Christy Lee.

25    I'm here for Candace Walton and Kenneth Gibbs

583                        CRC for Wells Reporting
                                817-524-6644
                                                 e2Bbd4ed-9dff-4753-b322
                                                                                Page 5
                   EXCERPT MOTION HEARING - July 31, 2014

 1    individually, as well as Kenneth Gibbs, the independent

 2    administrator of the estate of Bert Gibbs.

 3                   THE COURT:    Now, Ms. Lee, at our last

 4    meeting, we postponed a lot of things in order to,                    I

 5    believe, the issue was substituted service?

 6                   MS. LEE:     Yes, your Honor.

 7                   THE COURT:    And that's all been complete?

 8                   MS. LEE:     Yes, you Honor.        The

 9    publication's taking a little bit longer, but all of the

10    other -- the other things you requested for substituted

11    service have been completed.

12                   THE COURT:     Okay.    And, again, for our

13    record, and I hate to be redundant, but this is one of

14    the most convoluted and complicated matters I've seen in

15    all the years I've been on the bench.           It makes all my

16    previous suggestions that cases looked like bar a exam

17    question look puny.

18                   MS. LEE:     Yes, your Honor.
19                   THE COURT:     So in order -- it may take a

20    while, but in order for the Court to get this down in an
21    orderly manner, I do want to begin with your original

22    petition.   And I have read that and it's quite lengthy

23    and it has a lot of allegations.

24                   And you have filed -- this is a lawsuit

25    that's going to go forward in this court, regardless of

                            CRC for Wells Reporting
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                                                  e2Bbd4ed-9dff-4753-b322
                                                                             Page 6
                    EXCERPT MOTION HEARING - July 31, 2014

 1   all the other things orbiting around our lawsuit.

 2                   MS. LEE:      Yes, your Honor.

 3                   THE COURT:      And it's on behalf of, again,

 4   your clients.     Are they here today?

 5                   MS. LEE:      Yes, your Honor, Ken Gibbs

 6                   THE COURT:      Stand up for me.          You're

 7   Ken Gibbs.

 8                   MS. LEE:      And Ms. Walton.

 9                    THE COURT:     And Ms. Walton.         And then in
10   the capacity of administrator, also.

11                   MS. LEE:      Not on this current case, your

12   Honor.   It's concerning the motion to transfer the case
13   from Fannin county.

14                    THE COURT:     And it's in connection with
15   this original lawsuit that I now have before me not only

16   your order, which you have substituted a                  a second one

17   that you said was more -- that clarified or was more
18   appropriate.     The motion for the injunctive relief is in
19   connection with this original file?
20                    MS. LEE:     Yes, your Honor.
21                    THE COURT:     So do you think that that is

22   what we should hear first today?

23                    MS. LEE:     If you want to.        I was thinking

24   that we would hear -- Mr. Scott Smith has come all the
25   way from -- far away, and I thought that's the only

                             CRC for Wells Reporting                  Page
 585                              817-524-6644                                   '
                                                   e28bd4ed-9dff-4753-b322-14a0a6e
                                                                                Page 7
                   EXCERPT MOTION HEARING - July 31, 2014

 1   motion he's here for.

 2                  THE COURT:      And we -- he has a special

 3   appearance?

 4                  MS. LEE:      Well, not him individually --

 5                  THE COURT:      Somebody filed a motion to
 6   challenge his authority.

 7                  MS. LEE:      That would be me.           That's the

 8   first thing I think should be heard, is the motion to

 9   show authority, and then the motion to transfer the

10   Fannin county case to this Court.
11                   But if you would like to hear the

12   injunctive relief first, we do have a stipulation with

13   one of the parties who's agreed to -- agreed to the

14   injunctive relief for the -- for our petition, so we

15   already have one person on board.           That would be

16   Beverly Miller, the trustee of the GWB Trust.

17                   MS. COX:     Your Honor, that's not entirely
18   correct.   That is only as to the trust assets --
19                   MS. LEE:     No, no --
20                   THE COURT:     Yeah, I realize there was a
21   request for injunctive relief on personal assets.                       Also,

22   and the Court had already -- had already considered that

23   that may be a little past its reach today.                 So ...

24                   MS. COX:     And, your Honor, that would only

25   be if the Court retained jurisdiction of the case.                                    Exh bit          l3
                                                                         -             n .. "--,~52
                                                                         ra\11::'   /,;~.:,~,,"~"'!,;-.'11;'",\,
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                   EXCERPT MOTION HEARING - July 31, 2014

 1                  THE COURT:     Of course.         Well, then, should

 2   I give the floor to your, sir?

 3                  MR. SMITH:     I appreciate that, your Honor,

 4   but I think

 5                  THE COURT:     You may stand or be seated or

 6   whatever makes you more comfortable.

 7                  MR. SMITH:      I'm kind of a wanderer.        I'll
 8   try and stay right here.

 9                   I do think jurisdiction is the first issue
10   we should take up, because if you were to determine this

11   does not have -- this Court does not have a

12   jurisdiction, everything else becomes moot.             So I think

13   that's an important issue.and I'd like to address it
14   now, if I could.

15                   THE COURT:    On whose behalf, though?

16                  MR. SMITH:      I filed a special appearance on

17   behalf of Pentex Foundation, who is the plaintiff in the
18   Fannin county suit that involves this Mr. Gibbs, that
19   Mr. Gibbs and that Mr. Gibbs, revolving around the same
20   conduct.
21                  MS. LEE:      Well, first of all, I never

22   received a special appearance from Mr. Smith.             If you

23   filed one, you did not -- receive one.             Did you file a

24   special appearance?
25                  MR. SMITH:      Mr. John Skotnik

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 1   special appearance.     It's in the Court's file and I'm

 2   appearing on behalf of Pentex Foundation.

 3                  THE COURT:     But under whose -- the problem

 4   I was having is some -- what authority, by whose
 5   authority do you appear?

 6                  MR. SMITH:     By the authority of Pentex

 7   Foundation.   I have my fee agreement with me, I have the

 8   corporate documents, which I've given to counselor.              I

 9   have the documents sufficient to establish authority
10                  THE COURT:     Well, if that's the first order
11   of business, do you want him to take the witness stand

12   and be subject your examination?

13                  MS. LEE:      Yes, your Honor, that would be

14   great.

15                  THE COURT:     All right.         Corne around here,

16   sir.

17                   MR. SMITH:     Thank you.

18                   THE COURT:     Please raise your right hand.
19                   (Witness sworn)
20                   THE COURT:     Be seated please.
21                   And, Ms. Lee?
22                             SCOTT SMITH,

23   having been first duly sworn, testified as follows:

24                         DIRECT EXAMINATION

25   BY MS. LEE:
                                                                          Exhibit   t3
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 1        Q.     State your name for the record.

 2        A.     Scott Smith.

 3        Q.     And you are professing that you have been

 4   retained by Pentex Foundation?

 5        A.     Yes.

 6        Q.     And who was the individual that hired you?

 7        A.     Pentex Foundation.

 8        Q.     Okay.

 9        A.     I was not hired by an individual.

10        Q.     Who is the legal representative for Pentex

11   Foundation?

12        A.     Danny Unger.

13        Q.     Danny Unger.       Was he the individual --

14        A.     He was the -- let me put it this way, he's the

15   designated representative for litigation.                 The legal

16   representative is a broader term, so -- but there's

17   several individuals who are on the board and I've got my

18   fee agreement, if you'd like to see who signed.

19        Q.     Yeah,    I'd like to see the fee agreement.

20                       MS. LEE:     Your Honor, may I please,

21   approach.

22                       THE COURT:     Yes, you may.

23                       THE WITNESS:     I think it would be

24   appropriate to mark that as an exhibit

25                       THE COURT:     You may, this would

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 1     be     Pentex 1, perhaps?

 2           Q.   (BY MS. COX)     I see no signature.      I see a fee

 3     agreement with a name, but no signature.           Is that how

 4    you do your --

 5           A.   There's three pages.        Did I only print two?

 6           Q.   Wait, hold on.       My mistake, my mistake.

 7                        So a Mario Guilermo, you spoke to this

 8     individual?

 9                        THE WITNESS:    Your Honor, my conversations

10     with my client are privileged, I prefer not to say.

11                        THE COURT:     Well, she didn't ask you for

12     the conversation, she asked you whether or not you spoke

13     to him.

14                        THE WITNESS:     I did not speak to him.

15           Q.   (BY MS. LEE)     who did you speak to?

16                        THE WITNESS:     Your Honor, can I be

17     instructed not to answer that on the basis of privilege?

18                        THE COURT:     Overruled.
19                        THE WITNESS:    Al Barcroft.

20           Q.   (BY MS. LEE)     So Al Barcroft was the

21     legal -- who's the legal representative of Pentex

22     Foundation, correct?

23           A.   He has in the past represented himself as such,

24    yes.

25           Q.   Okay.

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 1   your fee agreement was signed by somebody else?

 2          A.   Yes.

 3          Q.   Okay.    And when you received your retainer, who

 4   paid you?

 5          A.   That, I don't    -- I don't recall.
 6          Q.   You don't know what the check looked like?

 7          A.   There were two checks came from two different
 8   sources.

 9          Q.   What were they?
10          A.   Four thousand each.
11          Q.   Who from?

12          A.   I don't remember.

13          Q.   You don't remember who your free agreement was

14   from

15          A.   My fee agreement was from Pentex --
16          Q.   I'm sorry.     You don't -- you don't

17   recall -- you remember the amount, you don't recall --

18          A.   The checks were not from Pentex Foundation.
19                       THE COURT:     Give him a second to answer.
20          Q.   (BY MS. LEE)     So when Al Barcroft called you,
21   on behalf of Pentex Foundation, did he give you any
22   board minutes?

23          A.   That's not really correct.              I was first
24   contacted by John Skotnik.

25          Q.   Okay.     So John Skotnik contacted you?

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 1        A.    Yes, he did.

 2        Q.    And what did you two discuss?

 3        A.    We discussed the fact that he had some sort

 4   alleged conflict of interest and he was familiar with my

 5   work and asked me if I'd be willing to take on the case.

 6        Q.    And so you said yes, obviously?

 7        A.    Eventually, yes.

 8        Q.    And then the next person you spoke to was

 9   Al Barcroft?

10        A.    That's correct.

11        Q.    Did you ever speak to this Mario individual?

12        A.    No.

13        Q.    Did you ever speak to anybody else besides

14   Al Barcroft concerning the engagement of legal services?

15        A.    Speak to, no.

16        Q.    You -- get an e-mail from anybody?

17        A.    That, I don't know.         There's been a lot of

18   e-mails.
19        Q.    So you're representing an entity, Pentex
20   Foundation, correct?

21        A.    Correct.

22        Q.    Do you have board minutes?

23        A.    I don't have the minutes, no.              I don't -- when

24   a -- when a corporation hires me, I don't look for their

25   board minutes.

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 1        Q.   Do you know that that is the way that you are
 2   hired by a corporation is through the board, and you do
 3   not have those minutes?
 4        A.   It may be the board, it may be the President of
 s   the company that has authority to do it, maybe the
 6   company's representative.        There's lots of ways that
 7   companies can hire lawyers.        They don't have to have a
 8   board resolution to do that.
 9        Q.   Actually, that's untrue.        You need to have
10   board resolutions, if you're a corporation.              Are you
11   aware of Panama law?
12        A.   No.
13        Q.   Are you aware that Panama law is almost
14   identical to U.S. law concerning corporations?
15        A.   No.
16        Q.   Do you understand that they have a board?
17        A.   No.
18        Q.   Did you not understand that Pentex Foundation
19   had a board?
20        A.   I don't understand Panama law, no.
21        Q.   No -- so you didn't realize that Pentex
22   Foundation had a board?
23        A.   No
24        Q.   So you never received
25        A.   Let me back up --

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                       EXCERPT MOTION HEARING - July 31, 2014

 1                       THE COURT:     Give me a second.

 2                       THE WITNESS:       I do believe there is a

 3    board, I do believe there are board members.              How that

 4    construct is done under Panama law, I do not know.

 5         Q.    (BY MS. LEE)       Okay.      So is this the only
 6    document that you have that shows authority that you're

 7    here for Pentex Foundation?

 8         A.    No.

 9         Q.    Okay.     What other documents do you have?

10         A.    Well, as I previously produced to you, I have

11    the e-mail that I sent you on June 13th with the

12    articles, I believe, from Panama.             Which I would like to

13    go ahead and mark as Pentex 2.

14                       MS. LEE:     May I?

15                       THE COURT:     Yes, ma'am.

16                       THE WITNESS:       Which is the e-mail and the

17    attachments.

18                       I also have the e-mails and attachments
19    that I sent you on July 8th, which contains the
20    translation and a certificate of -- I think it's called
21    certificate of authority from the country of Panama.

22    I'd offer that as Pentex 3.

23         Q.    (BY MS. LEE)       Okay.      So, in fact, what these

24    documents state is that it's an actual corporation,

25    correct?

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 1            A.     It states it's an entity under the laws of

 2    Panama.        If it's a corporation, or a foundation,        I'm not
 3    sure.        I don't --

 4            Q.    Right.      Okay.    So both of these documents, one

 5    in Spanish one in English, only states it's an

 6    incorporated entity?

 7            A.    And that it's in existence.

 8            Q.    Okay.     But, again, nothing showing me that you

 9    had any authority to file a special appearance for

10    Pentex Foundation, correct?

11            A.    You got my fee agreement.

12            Q.     So you have a fee agreement from a person who I
13    don't know, who says that you can represent Pentex

14    Foundation in this lawsuit, and you -- you just went

15    with this?

16            A.    Yeah, I just went with that.

17            Q.    Nothing else?

18            A.    Nothing else.        I don't usually challenge my
19    clients when they want to hire me.
20                          MS. LEE:     Okay.    Your Honor, I don't have
21    any further questions, I would

22                          THE COURT:     Would you like to continue to,

23    say, testifying, as it were, whatever you want to tell
24    the Court from the witness stand?
25

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 1                    THE COURT:     I guess what I was looking at

 2   something earlier and it seemed to be that only the

 3   president or the vice president or the secretary of the

 4   so-called entity had authority to engage in litigation,

 5   engage with counsel, am I -- did I misread?

 6                    MS. LEE:     Your Honor

 7                    MR. SMITH:     That may be what counsel

 B   represented.     I don't believe that to be the case.

 9                    MS. LEE:     Your Honor, I've been practicing

10   business law, tax law for many, many years, and

11   when -- as an officer of the Court, I will tell you that

12   you're required, when an entity decides to fire a -- to

13   file a lawsuit, it is a board resolution.                So the board

14   has to make the resolution to sue anyone.

15                    There is no board minutes here.               And Panama

16   1s concurrent.     It's not completely identical, but it is

17   concurrent with the U.S. way of entities.               And so there

18   should be board minutes, something showing me.
19                    And he's been on notice since April that I

20   needed something to show, including board minutes, and
21   he, still today, is not producing anything.

22                    THE COURT:     Would you like to answer that,

23   sir?

24                    MR. SMITH:     Well, number one, I would like

25   the Court look at what I did produce.

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 1                     The first response I had is, when I saw

 2    this motion, I looked at Rule 12, because this is the

 3    first time I've ever been challenged, in 30 years of

 4    practicing law, to show that my client actually has
 5    hired me --
 6                     THE COURT:     Well, maybe the client has the

 7    authority to hire you.        That's the issue, is it not?

 8                     MR. SMITH:     I don't know that you can go

 9    behind the engagement of the lawyer to challenge that
10    basis, as an opponent.        I mean, it seems awkward.

11                     What I was going to say was, when I looked
12    at Rule 12 --

13                     THE COURT:     The individual could

14    just -- could be a rogue board member or an interloper,

15    so to speak, or even stranger.        I mean, you don't -- you

16    say you haven't met this person, right?
17                     THE WITNESS:     Here's the reason I didn't,
18    your Honor.     The motion was never sworn like it's
19    suppose to be.     Rule 12 is like a sworn motion, so it's
20    not proper to consider.        I didn't get a chance to say
21    that earlier, but that was really my first response, is
22    I didn't go pull up all these minutes, because I didn't
23    have a sworn motion.

24                     More to the point, the motion is really two

25    parts.   It challenges the existence of Pentex, which            E hibit



597
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                 EXCERPT MOTION HEARING - July 31, 2014

 1   we -- that's the reason we sent those e-mails and sent
 2   the supporting documents months ago, and then challenges
 3   my authority.    That's why I sent her -- or had available
 4   my fee agreement.
 5                   I did not sit and compare the names on the
 6   documents from Panama with the names of the individuals
 7   that signed my fee agreement.        It may be the same.   I

 8   probably need to compare that, if you think that would
 9   answer the question.
10                   MS. LEE:     No, your Honor, to go
11   to -- concerning the -- the verification, this exact,
12   almost identical, motion to show authority has been
13   filed in Fannin county with a verification affidavit
14   stating that he does not have authority.
15                   MR. SMITH:     This isn't Fannin county.
16                   MS. LEE:     If it was inadvertently not put
17   on, if he's been on notice.
18                   And I would also show for the record, as he
19   stated erroneously, I've never seen the fee agreement.
20   So he said he had e-mailed that to me, I never received
21   it.
22                   MR. SMITH:     I referenced I sent you
23   the -- the incorporation documents and the certificate
24   of authority that are exhibits two and three.        I did not
25   send you the fee agreement.
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 1                 MS. LEE:     Well, I have my clients who

 2   signed the affidavit, who would be more than happy to

 3   get on the stand to state exactly what the affidavit

 4   provides.

 5                 THE WITNESS:     That's not procedure.

 6                 THE COURT:     So if I assume that you are

 7   here representing Pentex Foundation only or Pentex
 8   Royalty or is that one and the same?

 9                 THE WITNESS:     Pentex Foundation.        I don't
10   know who Pentex Royalty is.

11                 THE COURT:     And whether or not we have
12   service on Pentex Foundation, you are only here for a

13   special appearance on behalf of Pentex Foundation.
14                 THE WITNESS:     That is correct.

15                 THE COURT:     That special appearance, I've

16   seen, but for the most part is that that there's not
17   sufficient ties?

18                 THE WITNESS:     No, the special appearance is
19   based upon the question of jurisdiction and the dominant
20   jurisdiction of the Fannin County District Court --
21                 THE COURT:     Because there is one agreement,
22   as I recall, that had, in Fannin county, as a --
23                 THE WITNESS:     Right.     The original
24   agreement referenced venue in Fannin county.

25                 THE COURT:     Right.     Because we

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 1   our management trusts when we do a bank here and we do a

 2   trust for kids, we never know where they're going move
 3   and so we tend to make the jurisdiction and venue in
 4   Tarrant County, by my -- usually by my request.
 5                 THE WITNESS:     And this doesn't address

 6   jurisdiction, it just addresses venue.          My question on

 7   jurisdiction is whether this Court has incident

 8   jurisdiction to this case, because it's not out

 9   of -- what it pertains to is assets that have already
10   been distributed.

11                 THE COURT:     I know.      That's what bothers me

12   about this case as well.

13                 THE WITNESS:     And that's really what I want
14   to speak about --
15                 THE COURT:     But we're not going to get into
16   that right now.
17                 MS. LEE:     Yeah --
18                 THE WITNESS:      And with respect to the
19   secondary component of the motion to Rule --
20                 MS. LEE:     Again, your Honor, I would like
21   to focus on the motion to show authority.
22                 THE WITNESS:      That's what I'm talking
23   about.

24                 THE COURT:     Well, he said the Rule 12
                                                                              Exhibt
25   motion, the second part.

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                      EXCERPT MOTION HEARING - July 31, 2014

1                      THE WITNESS:      The second part was whether

 2     Pentex existed.     And I don't know if that's still an

 3     issue or not

4                      MS. LEE:      No, your Honor.

 5                     THE WITNESS:       -- then I'll just rest.

 6                     MS. LEE:      Yes, he has provided me the

 7     documentation for that.

 8                      THE COURT:     Just once again, and it will be
 9     repeating yourself, but tell me, again, the
10     scenario -- I remember the other attorney, is he from

11     Sherman possibly --

12                      THE WITNESS:      Bonham.

13                      THE COURT:     Bonham.

14                      MR. SMITH:     I'm from Sherman.
15                      THE COURT:     I can't remember everything
16     about every case, but I do try to retain -- okay.                     But

17     now he's been here before.         How do you pronounce his

18     name?
19                      THE WITNESS:      Skotnik.
20                      THE COURT:     Skotnik.      So he's the one that
21     initially called you, initially recommended you or
22     you're not sure?

23                      THE WITNESS:      He called me because he knew

24     he was -- or he was afraid he had a conflict of

25     interest, and he voluntarily withdraw.              Called me and

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                    EXCERPT MOTION HEARING - July 31, 2014

 1    asked if I'd be interested in the case, explained part

 2    of the details of the case, and like most attorneys, I

 3     said, if it will pay me, I'll do it.

 4                      THE COURT:     A retainer is usually the next
 5    thing --

 6                      THE WITNESS:     It was, it was.     I didn't

 7    enter an appearance until I had the retainer.            I do have
 8    a case for you, your Honor --

 9                      THE COURT:     It's a little disingenuous to
10    not remember, isn't it -- I mean, you get that many
11     $5,000 checks?

12                      THE WITNESS:     I don't remember the names.
13     I want to say one of them was Mr. Unger --

14                      THE COURT:     You're under oath and you don't
15    want to be -- commit perjury.

16                      THE WITNESS:         it wasn't the name of the

17     client.   I'd be more than happy to look and I'd be more

18     than happy to supplement my answer, but I don't remember
19     that
20                      THE COURT:     So you received two
21     different -- two different -- for a total retainer of
22     $10,000, is that what I understood?

23                      THE WITNESS:     Yes, sir.      I think I can

24     explain this and maybe it will make a some sense.            The

25     asset that Pentex had is assigned to a GBU Trust.           And
                                                                   Page~~~
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 1     think some beneficiaries of that trust are the ones that

 2     actually paid the fees.     Because they're the ones with

 3     the financial interest.

 4                   And I want to say one was Mr. Unger.                     And I
 5     just don't remember who the other check came from.                     It

 6     could have been Mr. Barcroft.       I just don't know.

 7                   THE COURT:     So Mr. Barcroft is the one who

 8     mailed you the agreement paperwork?

 9                   THE WITNESS:      I get it via e-mail.

10                   THE COURT:     That's what you printed off and
11    provided for opposing counsel?

12                   THE WITNESS:      Yes, sir.       Your Honor, I

13     found one case and it's the Patton Children's Trust case

14     out of Amarillo.   It's not published, but it does talk

15     specifically about Rule 12.       And I've got a single copy.

16     I'm sorry, I didn't bring extras.
17                   And says, typically, the response to a

18     Rule 12 motion, an attorney satisfies his or her burden
19     to establish the authority to prosecute or defend a suit
20     through an affidavit from the client indicating the
21     attorney was retained and/or through testimony of the
22     attorney.

23                   And that's all it says you have to do to

24     satisfy the burden.   And that's all we've done, your

25     Honor.                                                                      Exhibi     B
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                     EXCERPT MOTION HEARING - July 31, 2014

 1                     MS. LEE:     One thing, your Honor.        Was that

 2    a corporation?     Was that case a corporation?

 3                     THE WITNESS:     I think it was a trust.

 4                     MS. LEE:     It's very different than a

 5    corporation.

 6                     THE WITNESS:     Well, it just says the
 7    attorney has to give his testimony.               That's what I've

 8    done.   And I'll submit that for the Court.

 9                     THE COURT:     Additional questions, Ms. Lee?

10                     MS. LEE:     No, your Honor.

11                     THE COURT:     You may step down at this time.

12                     THE WITNESS:     Thank you.

13                     THE COURT:     It's a very interesting

14    question posed, because usually what our motion                 we

15    have motions to show authority all time in this Court,

16    because it's probate court and often persons who are
17    alleged to be incapacitated tend to show up with private
18    attorneys or private attorneys show up and tend to claim
19    they're representing the incapacitated person.               So those
20    cases are one in which we have a threshold of showing
21    that the person has at least the capacity to engage an

22    attorney.

23                     So while we are accustomed to Rule 12

24    agreements, this is -- or Rule 12 objections or motions,

25

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 1   more or less, in this case.

 2                   So it's your motion, tell me why I

 3   should -- why I should grant your motion, what proof he

 4   hasn't supplied.     I mean, he has come under oath and
 5   stated that he believes he's the attorney .

 6                   . MS. LEE:   I know, your Honor

 7                   THE COURT:     And he's gotten payment from
 8   someone.

 9                   MS. LEE:     But he didn't get it from Pentex
10   Foundation, your Honor.       He got it from two individuals
11   who have nothing to do, reportedly, with Pentex

12   Foundation.    He hasn't met these -- he hasn't any of the

13   people from Pentex Foundation, Incorporated.                 It's a

14   corporation.     It's very different.

15                    He's been on notice since April that we
16   have questioned his authority.          He could have obtained a

17   resolution from the board.        We specifically asked for
18   that, and he provided us with just that it's a
19   corporation, which does satisfy that it's a Panamanian
20   corporation.
21                    But still, he has no proof that he's
22   been -- and it's exactly what you stated earlier, your

23   Honor, how do I know that -- there are plenty of cases,

24   I apologize I don't have them on me, where cases have

25   been thrown out, where the board -- because a

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                    EXCERPT MOTION HEARING - July 31, 2014

 1   shareholder would say, I was at the board meetings, and

 2   the board never resolved, ever, why I was there in order

 3   to sue somebody.     And that case would get thrown out, as
 4   not having authority -- as the attorney not having the
 5   authority.
 6                    I don't think he did his due diligence.

 7   Again, he received two checks from two individuals,

 8   which are not associated with Pentex Foundation.                          And

 9   signed from a lady who he -- a gentleman who's he's
10   never met, via e-mail.

11                    THE COURT:    Doesn't sound very good when

12   she says it.     But you, obviously, have a different

13   version.

14                    MR. SMITH:    I used to do insurance defense.

15   Insurance companies paid me all the time.                   They weren't
16   the client.     The client was the individual I was
17   representing.

18                    THE COURT:    But I suppose nobody challenged
19   whether or not the insurance company existed or whether

20   or not the proper route or road map was taken between
21   the powers that be and your ultimate appearance in the

22   courtroom.

23                    MR. SMITH:    That is true.            I was never

24   challenged.     No one would ever think to do that.

                                                                                                            v1
25                    THE COURT:     She has challenged, apparentlvL.                                        ~
                                                                                          l:xmbt
                                                                                                ,,..;r!f"':• '•-,,,
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 606                              817-524-6644
                                                   e2 8bd4ed- 9df f -4 753 -b322 -14aOa6 ;,
                                                                 Page 28
                  EXCERPT MOTION HEARING - July 31,2014

1    from the beginning.

2                   MR. SMITH:    Well, with an unsworn motion
 3   not properly before the Court.        And so I brought what I
4    had.   I did not get an authorization.          And the case that

 5   I gave you says that the remedy is to give us more time.

 6                  THE COURT:    Excuse me?

 7                  MR. SMITH:     I believe the case that I gave
 8   you, it's over there on the corner of the bench, I
 9   believe they said the remedy is not to dismiss our
10   position, but to give us more time to find an attorney
11   or demonstrate authority.      So it seems like

12                  MS. LEE:     He's been on notice since April.

13   It's now July 31st.

14                  THE COURT:     Well, he does have a point.         It
15   is supposed to be a sworn motion.         That can be fatal.

16                  MS. LEE:     Your Honor, if I can --

17                  THE COURT:     Does it not say that in the --

18                  MS. LEE:     No, he      he is accurate.     Oh,
19   actually, your Honor, there is one.

20                  MS. SMITH:     There's an affidavit --
21                  MS. LEE:     There's an affidavit of counsel,
22   myself, that I signed in support, stating that
23   everything in here was true and accurate.           So there is

24   an affidavit in support of this motion.

25                  MR. SMITH:     Which

                           CRC for Wells Reporting
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                   EXCERPT MOTION HEARING - July 31,2014

 1                  MS. LEE:      So, yes, it is there.

 2                  MR. SMITH:     Which motion?

 3                  MS. LEE:      It's this motion -- the amended

 4    motion to transfer cause of action and motion requesting

 5    counsel to show authority.      It is      -- it's on there.
 6                  MR. SMITH:      The

 7                  THE COURT:      The one filed on 7/7.

 8                  MR. SMITH:      The one I received doesn't have

 9    it.

10                  MS. LEE:      Your Honor, it was all sent

11    together.   It's directly after --

12                  MR. SMITH:      Thank goodness you have

13    (inaudible), but mine says page 25 of 25.           I don't see
14    it --

15                   MS. LEE:     It's after the fifth page --

16                   THE COURT:     Yeah, here it is.

17                   MS. LEE:     And I sent it via e-mail, your

18    Honor.
19                   THE COURT:     Yeah, it's there.       It came with
20    the original, I beg your pardon.           Ms. Lee, it's attached
21    to your original petition.

22                   MR. SMITH:     I will stand corrected, your

23    Honor, it is sworn.

24                   THE COURT:     And also attached to that

25    motion, what do you have here about the -- it looks

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                    EXCERPT MOTION HEARING - July 31, 2014

 1   Exhibit C, this Quinto, agente residente?

 2                   MS. LEE:      Your Honor, that was the document

 3   that Mr. Smith filed as, I believe, Exhibit 2.                   It was
 4   the foreign       incorporation documents for the Pentex
 5   Foundation.    At the time I filed this motion, he had

 6   only sent me the Spanish version.

 7                   THE COURT:      Okay.

 8                   MS. LEE:      And I did receive an English

 9   version from him.
10                   THE COURT:      Well, I was looking-- I've got

11   some notes here.     I'm not -- I don't pretend to be a

12   translator.

13                   MR. SMITH:      Your Honor, we got the

14   translation here.

15                    THE COURT:     Well, what does it say, then,

16   Ms. Lee, about hiring counsel?

17                   MS. LEE:      I don't believe it says anything
18   about hiring counsel.
19                    THE COURT:     So there's nothing in the
20   agreement itself.     Your reference was to the Panamanian

21   statutes, which you say are similar to Texas or United

22   States   --
23                    MS. LEE:     Yes, your Honor.

24   There's -- there's a     -- I apologize, I don't remember
25   the name.     There's an international type of            organizati~~N                     · "',
                                                                                /'Q,~   #.....           '\
                                                                       Page_~""-
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                                                   e28bd4ed-9dff-4753-b322-14a0a~
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                    EXCERPT MOTION HEARING - July 31, 2014

 1   that the U.S. agrees with, as well as Panama does.                  And

 2   they agree with the same type of service, as well as

 3   lawsuits and

 4                   THE COURT:     And when and how did you notify

 5   him that you were expecting to have more formal

 6   documentation than in the usual Rule 12 motion -- you

 7   know, Rule 12 show authority?

 8                   MS. LEE:      I believe the first time was
 9   April 25, 2014.     I sent multiple e-mails as well, asking

10   who is the representative of Pentex Foundation, and he

11   has stated he would get back to me.               Today is the first

12   day.

13                    I sent him another e-mail on June 20, 2014

14   requesting who is the legal representative for Pentex
15   Foundation and, again, today is the first day he's
16   actually given me a name.        That lawsuit was filed,        I

17   believe, that was the end of March or maybe the

18   beginning of April.
19                    THE COURT:     Well, it appears to me that I
20   may have to agree with the Amarillo court in the sense
21   that, I'm reading between the lines that your                 your

22   allegation is that there might not be proper

23   authorization, even though this man has allegedly been

24   hired and paid

25                    MS. LEE:     Yes, your Honor.                       Exhibit   [3
                             CRC for Wells Reporting
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--------------------------~--------··-                           ··-·-




                                                                         Page 32
                        EXCERPT MOTION HEARING - July 31, 2014

     1                      THE COURT:     -- that there's an underpinning

     2     or prerequisite that is required in order for him to

     3     show the type of authority that you are requesting, if

     4     not demanding.     Is that a fair statement?

     5                      MS. LEE:     Yes, your Honor.

     6                      THE COURT:     And you believe that you've

     7     given him notice.     And I don't suppose you have those
     8     e-mails here or anything
     9                      MS. LEE:     No, your Honor.     But I would be
    10     more than happy to supplement.          Yes, I have given him
    11     ample notice.     And in the other motion

    12                      THE COURT:     And even though he has never

    13     had this happen before, you know, there's always a first

    14     time for everything in law, and this is what you're
    15     demanding?

    16                      MS. LEE£     Yes, your Honor.
    17                      THE COURT:     Well, I see       I see no other
    18     alternative than to continue this and give you, like he
    19     said, time to -- to reappear here.           And you, by that
    20     time, will have the cases in the law and then he will
    21     be -- he will comply if that is what's required.
    22                      MS. LEE:     We have waited four -- three

    23     months to have this hearing.          We have waited many

    24     months.   It's been cancelled three times.          He has been

    25     full aware --

                                  CRC for Wells Reporting
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                 EXCERPT MOTION HEARING - July 31, 2014

 1                 THE COURT:     I'm not sure that the

 2   cancellations were his fault.       They may have been my

 3   own --

 4                 MS. LEE:     No, two of them were other

 5   individuals' fault.   No, they've never been -- No, never

 6   been Mr. Scott -- I didn't mean to imply that, at all.

 7   This has nothing to do with Mr. Scott.

 8                 THE COURT:     Well, I'm sorry -- you know,

 9   Ms. Lee, I'm just simply not prepared, I mean, I owe him

10   a courtesy as a fellow member of the bar, just as I owe

11   you, however I understand why you want more than he's

12   prepared to provide today, so

13                 MS. LEE:     Can --

14                 THE COURT:      -- I have a choice of either,

15   you know, overruling your motion and going forward, when

16   in fact, you may be correct.        If he does not show the

17   proof that's necessary, I would grant your motion.          But

18   I can't do any of that today.
19                 I guess we could hear his -- we could take

20   testimony on his special exception or hear his argument
21   on his plea and abatement or special appearance,

22   conditioned upon the Court, ultimately, finding that he

23   had the authority      the requisite authority to make it.

24                 MS. LEE:     That is perfectly fine with me.

25                 THE COURT:     And then if he -- if that      COlBXffibi   {3
                           CRC for Wells Reporting
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                       EXCERPT MOTION HEARING - July 31, 2014

1     to pass, then we won't have to do the motion again.

 2                       MS. LEE:      I -- I would prefer that.                   Is

 3    that agreeable with you

 4                       THE COURT:       You're prepared to argue that

 5    today, are you not?

 6                       MR. SMITH:       I am, sir.

 7                       THE COURT:       Well, then let's go forward on

 8    that basis, then.         The Court will take under advisement,
 9    pending further testimony and exhibits, et cetera, as to

10    whether or not Ms. Lee's motion to show authority should

11    be granted.

12                       And now as I told -- you know, we usually
13    have somebody from the Florida who says they've never

14    been to Texas and the long arm statute and all that, but
15    your special appearance is a different kind of cat, so

16    to speak, right?

17                       MR. SMITH:       Yes, yes, sir.

18                        THE COURT:      You want to tell me about your
19    special appearance?
20                       MR. SMITH:       Yes, sir.         And it really goes
21    to the Court's jurisdiction.              And I'm certain this Court
22    is for more educated on probate court jurisdiction than

23    I am.     I come from a county with courts of general

24    jurisdiction, so we have different sets of issues.                            So I

25    had to research this and I have --
     .____ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _E_x_h_ib__.i _/}~ .. ,,,,

                                  CRC for Wells Reporting                   Page    3Y     of{                    ' t'~\
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                                                                     Page 35
                   EXCERPT MOTION HEARING - July 31, 2014

 1                   THE COURT:      Well, it changes every

 2   legislative session.       So you may know more about it than

 3   I.
 4                   MR. SMITH:      My analysis starts with the
 5   SWEPI case.     I'm not sure        are you familiar with that

 6   or not?

 7                   THE COURT:      I am, indeed.

 8                   MR. SMITH:      Okay.        And what that tells us
 9   and teaches us -- I have a copy, if you like, or I can
10   give it to counsel.
11                   MS. LEE:      Your Honor, I'm -- I'm

12                   THE COURT:      Is this more on your motion to

13   transfer or your special appearance?
14                   MR. SMITH:      It goes to jurisdiction, which
15   is the foundation of the special appearance.              The
16   jurisdictional question is which court has dominant

17   jurisdiction.     And if this Court case doesn't have

18   exclusive probate jurisdiction, then I'm going to argue
19   that Fannin county has dominant jurisdiction, by virtue
20   of being filed first.       That's why I'm going to SWEPI
21   first.
22                    THE COURT:     But you're arguing not a

23   special appearance before the Court, aren't you arguing
24   the main issue of transfer?

25                    MR. SMITH:     That was the reason we made thEf:,~ibit   &
                            CRC for Wells Reporting
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                                                                          Page 36
                  EXCERPT MOTION HEARING - July 31, 2014

 1    special appearance.

 2                  THE COURT:      So you wish to -- you wish to

 3    appear on behalf of their motion to transfer, in a

 4    special appearance, and argue on the merits of whether

 5    or not the Court should consolidate or transfer?

 6                  MR. SMITH:      Yes, sir.

 7                  THE COURT:      As opposed to a special

 8    appearance as to whether or not this Court has

 9    jurisdiction over the person or the corporation

10    itself --

11                  MR. SMITH:      Exactly.

12                  THE COURT:       -- we're talking about

13    lawsuit -- or the cause of action.

14                  MR. SMITH:      Yes, sir.

15                  THE COURT:      Or alleged cause of action.

16                  MR. SMITH:      Yes, sir.

17                  THE COURT:      Well

18                  MR. SMITH:      Because it affects us, if you
19    were to assume jurisdiction from Fannin county, that

20    directly affects Pentex, who filed suit in Fannin
21    county.

22                  THE COURT:      All right.          Ms. Lee, I'm going

23    to go ahead and, again, I'm to go -- we're going to go

24    ahead and hear this.     And it's still conditioned upon

25    him, ultimately, showing authority.              But let's go ahea§.xhibi        f3
                                                                   Page_......_..'--
                             CRC for Wells Reporting
615                               817-524-6644
                                                                   Page 37
                    EXCERPT MOTION HEARING - July 31, 2014

 1    and get to meat of that.

 2                   MS. LEE:       Your Honor, with all due respect,

 3    it's my motion    --
 4                     THE COURT:     It's your motion.

 5                     MS. LEE:     Can I give first   --
                       THE COURT:     You can go first.
 7    good point.

 8                     MS. LEE:     Okay.   Thank you, your Honor.

 9                     THE COURT:     Because I'm really

10    concerned -- here's the thing that bothers me.            It seems
11    like assets were distributed from an estate, and the

12    people, for better or worse, made a bed they don't like
13    lying in.

14                     MS. LEE:     Your Honor, it's very different
15    than that.    It's --

16                     THE COURT:     And so it really may not have
17    anything to do with this Court, at all.
18                     MS. LEE:     I respectfully disagree.      And --
19                     THE COURT:     All right.   Now,
20    notwithstanding the trustee and alleged actions of the
21    trustee are going to be the -- the petition that I
22    mentioned originally, that's our trial petition that
23    we're going to go forward on, come hell or high water.

24                     MS. LEE:     Yes, your Honor.      But I'm talking

25    about a case in Fannin county.         And I think the           Exhibit   13
616
                                                                  Page 38
                   EXCERPT MOTION HEARING - July 31, 2014

1     big -- the big thing that's up for discussion here is

 2    they believe these two cases are one and the same.

 3                   The current case that's in this

 4    jurisdiction, that you said, come hell or high water,

 5    we're going to move forward, and the case in Fannin

 6    county.   They aren't the same, at all.

 7                   My first -- my two clients, Ken and Candy,

 8    they have asked for this Court to transfer into the

 9    estate of Bert Gibbs, this case.           Ken and Candy are two

10    of the four heirs of the estate of Bert Gibbs.           Bert

11    Gibbs had four heirs.     Howard Kirk, who's the gentleman

12    over there, he's number three.

13                   These three individuals went to bed with

14    Al Barcroft, AKA Pentex Foundation, and signed a

15    contract, which, by the way, your Honor, Al Barcroft

16    drafted the contract on his own accord, on his own

17    behalf, and inside the jurisdiction in Fannin county.

18                   THE COURT:     And it appears he was
19    practicing law without a license.

20                   MS. LEE:     Yes, your Honor.       And pursuant to

21    the Texas Estate Code 34.001, you have the authority

22    that you may, not required, but you may transfer to your

23    Court from a district court, and that's where that court

24    is, any cause of action related to probate proceedings

25    pending in 'another court or cause of action in which tEwtibit        J3
                            CRC for Wells Reporting
617                               817-524-6644
                                                                   Page 39
                   EXCERPT MOTION HEARING - July 31, 2014

 1   personal representative of the estate pending in this

 2   Court is a party.    And you can consolidate these cases.

 3                   THE COURT:     True.

 4                   MS. LEE:     Well.     Okay.     What happened is

 5   when this lawsuit was filed, it was filed specifically

 6   stating that it was for Pentex Foundation not getting

 7   attorney fees that it was entitled to from -- from --

 8   from the estate of Bert Gibbs.

 9                   Your Honor, you have to keep in mind, even

10   though it does look like these are assets that have been

11   transferred out of the estate, there are assets that

12   aren't transferred out of the estate.             There currently

13   is a $6.1 million offer on a piece of property, to pay

14   in full, or a $8.5 million installment agreement over

15   the next five years, that will come to the estate of

16   Bert Gibbs.

17                   There is a lot of money out there.           My

18   clients -- my two clients own 25 percent of the estate.
19   So if they own 25 percent, they are potentially going to
20   get $2 million.     Al Barcroft owns a percentage and
21   Howard Kirk Gibbs also owns --he owns 12.5 percent.                 So

22   we have a lot of assets for the estate of Bert Gibbs.

23                   And we filed an amended answer in the

24   Fannin county case, because what they
25   allege -- and       what they allege is exactly what

                            CRC for Wells Reporting
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                    EXCERPT MOTION HEARING - July 31, 2014

 1   Mr. Smith states, which is it's attorney fees.          In

 2   their -- they sent admissions to my clients, 85

 3   admissions.    Of 85, over 20 only included Ken as

 4   executor.

 5                    So when I objected, and said I'm

 6   not -- this is for harassment purposes only, Ken, as the

 7   executor of the estate, is absolutely irrelevant.            I

 8   have an e-mail June 26th from Mr. Smith that states that

 9   the attorney fees

10                    MR. SMITH:    Your Honor, I'm afraid I have

11   to object.    And that's why I was going to tell you about

12   the SWEPI case.     You determine jurisdiction based on the

13   pleadings.    We're getting into a lot of ancillary stuff

14   here, that are not relevant to the pleadings on file ,

15   so I would object to her introducing --

16                    THE COURT:     I'm going to overrule the

17   objection for now.

18                    MS. LEE:     So he says requests 68 and 69 are
19   the core issues of our case in Fannin county, our core

20   issues.     68, subsequent to the execution of the family

21   settlement agreement, Ken, as executor, has used funds

22   for the estate of Bert Gibbs to pay attorney fees that

23   were owed by Candy.

24                    69, subsequent to the execution of the

25

                             CRC for Wells Reporting
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                                                                    Page 41
                     EXCERPT MOTION HEARING - July 31, 2014

 1    funds for the -- from the estate of Bert Gibbs,

 2    deceased, to pay attorney fees that were owed to Ken.

 3                    We have pulled in -- you know,          it's very

 4    difficult, your Honor, that my client is Ken,

 5    individually, and as the independent administrator of

 6    the estate.     When we filed our supplemented answer, we

 7    stated that they have a defect in legal capacity.             They

 8    have admitted, in these documents and other documents,

 9    that it is at the core, over 20 questions which

10    Mr. Smith -- Pentex Foundation has already filed a

11    motion to compel stating that they wanted -- that those

12    were paramount issues concerning his fiduciary duty as

13    the trustee.

14                     His conditions of the home place for

15    self-dealing.     What does that have to do with a

16    contract -- what does my client, Ken, have to do -- as

17    independent administrator, have to do with the contract

18    that they're suing for in Fannin county?          They're suing
19    the wrong individual.

20                     Ultimately, Ken -- Ken, as executor of this
21    estate, is going to be pulled in.

22                     THE COURT:     And a resident of Tarrant

23    County?

24                     MS. LEE:     Yes, your Honor, a resident

25    Tarrant County.     So is Howard Kirk Gibbs.                        Exhibt ~


                              CRC for Wells Reporting
620                                 817-524-6644
                                                                             Page 42
                     EXCERPT MOTION HEARING - July 31, 2014

 1                    THE COURT:      Okay.

 2                    MS. LEE:      So, your Honor, this is what I've

 3   been able to determine

 4                    THE COURT:      But he's being sued in his

 5    capacity as an executor

 6                    MS. LEE:      No, your Honor.        Right now, he's

 7    being sued as an individual, because there's a family
 8    settlement agreement that was filed in this Court in
 9    2008.   And, specifically, it states that the four

10    players, all four, Al Barcroft, Howard Kirk, Ken and

11    Candy, if they sue the executor, sue the estate in any

12    capacity, they have a potential for forfeiting all their
13    inheritance.

14                     THE COURT:     So it's kind like an in
15    terrorem clause in a will?

16                     MS. LEE:     Yes, that's exactly -- so they

17    didn't want to sue Ken

18                     THE COURT:     In his capacity as executor.
19                     MS. LEE:     As executor.        But as Mr. Smith
20    states in his e-mail, core issue goes to how the
21    attorney fees were distributed.

22                     That's exactly -- Pentex Foundation is

23    suing my clients, stating that the attorney fees --

24                     THE COURT:     They can't -- individually, he

25    has no --
                                                                                Exhibit   /3
                              CRC for Wells Reporting
621                                 817-524-6644                                   1

                                                    e2Bbd4ed-9dff-4753-b322-14a0a6e~
                                                                                   \
                                                                     Page 43
                   EXCERPT MOTION HEARING - July 31, 2014

 1                   MS. LEE:     Exactly

 2                   THE COURT:     -- he has no responsibility for

 3   attorneys fees.

 4                   MS. LEE:     Exactly.    We have an affidavit
 5   that we have attached, saying you're suing me in the
 6   wrong capacity.     So that lawsuit is going --

 7                   THE COURT:     That's something you

 8   should argue up there, is it not, that he's suing in the

 9   wrong capacity?

10                   MS. LEE:     We have filed that, your Honor,
11   but we're trying to -- judicial economy.         With this case
12     -- as you've already stated,     this case -- the estate of
13   Bert Gibbs has been going on since 2005.

14                   If this installment agreement gets signed
15   for the sale of the property, this case will stay open

16   until 2020, and I'm sorry to tell you that.            It's a
17   five-year installment agreement to sell a big piece of
18   property.
19                   THE COURT:     But it's independent
20   administration --
21                   MS. LEE:     Yes --

22                   THE COURT:         so I don't really have any
23   say so over who buys what.

24                   MS. LEE:     Exactly, your Honor.       But it's

25   still in this Court, so this Court is still going to                Exhi it   iJ
                            CRC for Wells Reporting
 622                             817-524-6644
                                                                  Page 44
                    EXCERPT MOTION HEARING - July 31, 2014

 1   hear disputes.     It's not the first time these

2    individuals have had disputes, it's probably not going

 3   to be the last.

 4                    THE COURT:     They have a settlement

 5   agreement they filed with this Court, if they have
 6   another dispute.

 7                    MS. LEE:     Exactly, your Honor, and we are

 8   pursuing that on one avenue.          But we -- with judicial

 9   economy, you know, this Court is allowed to hear cases

10   or transfer a case over, if this considers probate

11   proceedings.     And that case specifically concerns

12   probate proceedings concerning the administration of the
13   estate of Bert Gibbs.

14                    THE COURT:     Not if he's been filed

15   incorrectly against him.

16                    MS. LEE:     Correct, your Honor.      But if we
17   file that over there and do a motion to dismiss, which
18   we've already filed, we've got to go to Fannin county,
19   hear all that, have it all done.            It's going to cost a
20   lot of money
21                    THE COURT:     Right.

22                    MS.   LEE:   -- how much money my clients have

23   paid so far,    just to get to this phase          --
24                    THE COURT:     Right.

25                    MS.   LEE:   -- so all that money to have
                              CRC for Wells Reporting
 623                               817-524-6644
                                                                     Page 45
                     EXCERPT MOTION HEARING • July 31, 2014

 1    re-file over in this county, because I can assure you,

2     they will re-file.      So why not have it moved here,
 3    switch out the players, and move forward with the

 4    lawsuit.

 5                     They're sitting right here, you can ask

 6    them.    They're not going to drop the lawsuit.         I've
 7    tried to settle with them.        They're not going to drop
 8    it.     But we can do all that, but we're going to be back
 9    here in January, six months later, fighting -- having

10    the exact same petition that they filed and Ken and

11    Candy's name, individually, is going to be x-ed out and

12    the estate of Bert Gibbs is going to be in there.

13                     THE COURT:     But as I was telling your

14    opposing counsel here, you know, actually the first case

15    under SB is out of this court.          It's called Lagrone v.

16    Henry.     The very first one ever reported, and it had to

17    do with a trust that -- the trustee was in -- up there

18    in the panhandle and our beneficiary was down here.
19                     Be that as it may, that was the first
20    reported case.     And ever since that case, the
21    legislature and the Supreme Court and other courts have
22    made SA and SB decisions.        SB -- it's a new Estates Code

23    decision, but have made these decisions.          Every

24    legislature comes in and changes it and the Supreme

25    Court changes it and it gets really complicated

                              CRC for Wells Reporting
     624                            817-524-6644
                                                                 Page 46
                    EXCERPT MOTION HEARING - July 31, 2014

1      whether or not the court -- and the one that you're

2      speaking of, Counsel, where they drug in an entire

 3     hospital staff and everything all the way down to Harris

 4     County to have a trial, was that -- that was one of the

 5     abuses of this consolidation.

 6                    One of the ones that caused one of the more

 7     recent restrictions on these transfers was where

 8     somebody went down the Houston and got a guardianship,

 9     and then sued the doctor and the hospital in Midland for

10     causing damages.   And the whole hospital and everybody,

11     the lawyers, and all had to move down to Harris County

12     for trial and that's one of the last ones where the

13     legislature said enough is enough.

14                    So I'm very, let's say, proactive in

15     consolidating cases from down the street, from my

16     sisters and brethren who are in district courts and we

17     have something that's clearly linked to the estate.         In

18     fact, in 30 years, I've only had one of those ever
19     challenged by the judge, himself.

20                    But be that as it may, when we start

21     dragging stuff across county lines, the Court is more

22     reluctant.   I know you also read the cases that say it's

23     entirely my discretion if I choose not to do it.

24     There's no appeal from choosing not to do it.         You can

25     certainly appeal me choosing to do it wrongly.              Exhibit   t3
                             CRC for Wells Reporting
     625                          817-524-6644
                                                                     Page 47
                   EXCERPT MOTION HEARING • July 31, 2014

 1                  Aren't we just, though, missing a step, the

 2    fact that he hasn't been sued, as you say that's all

 3    they're -- but then doesn't that invoke this so-called

 4    nuclear provision, if they sued him as an executor?

 5                  MS. LEE:      Right.    But for judicial economy,

 6    your Honor -- and it would be, bring the case over here,

 7    and we could -- we don't have to start anew.          This has

 8    been going on since, basically, November of last year,
 9    not in your court, but with --
10                   THE COURT:     But that's nothing for

11    litigation, as you well know.

12                   MS. LEE:     I know.    But there's other issues

13    as well.   Pentex Foundation, which I have not mentioned

14    yet, has sent demand letters to all the -- to the

15    estates and to the attorney, for the permanent guardian

16    of the decedent's wife, demanding that any more proceeds

17    from the estate be sent to them directly, instead of

18    what the contract states, which is to the GWB -- I mean
19    the --
20                   THE COURT:     Is that why people do
21    interpleaders and put money in registry of the Court?
22                   MS. LEE:     That would be great, but I don't

23    know if people are going to do that.

24                   THE COURT:     That's their issue, I guess.

25                   MS. LEE:     The issue with the family             Exhib   t3
                            CRC for Wells Reporting           Page    Y7
     626                         817-524-6644
                                                              Page 48
                    EXCERPT MOTION HEARING - July 31, 2014

 1   settlement agreement as well, which is filed with this

 2   Court, and also, I believe it's filed with the recorders

 3   direct.     It specifically states anything concerning --

 4   anything concerning the estate is in this Court, not

 5   just Tarrant County, but it says Tarrant County, Probate

 6   Court No. 2.

 7                   MR. SMITH:      That's an abject
 8   misrepresentation.
 9                    MS. LEE:     No, it's not.
10                    THE COURT:     I've got the excerpt of the
11   family settlement agreement and what it says,

12   verbatim --

13                   MS. LEE:      Is it 3.34?

14                    MR. SMITH:     3.34, appropriate and exclusive

15   venue for any suit arising out of this agreement is

16   agreed by the parties to be in the statutory probate

17   court of Denton county, so long as the matter is not

18   presided over by Judge Don Windle.
19                    MS. LEE:     Continue reading please.
20                    MR. SMITH:     In the event the matter will be
21   heard by Don Windle, then in that event, the parties
22   agree that probate should be in this court.

23                    But Don Windle is not on the bench

24                    THE COURT:     He's been gone for a while,
25   actually.                                                     Exhibit   JS
                             CRC for Wells Reporting
 627                              817-524-6644
                                                                    Page 49
                  EXCERPT MOTION HEARING .. July 31, 2014

 1                    MS. LEE:     Well, originally, I'll have to

 2    look at my copy.    If I misrepresented, I apologize.           But
 3    second of all, lots of copies go around when it concerns

 4    these individuals, so I'm not sure

 5                    MR. SMITH:     Here's a copy for the Court.

 6                    THE COURT:     Do you want me -- I could, I
 7    guess, appoint a receiver and that receiver could sell
 8    this property

 9                    MS. LEE:     Well, that's not the problem

10                    THE COURT:     -- keep the money until we

11    decide who was entitled to get it.
12                    That's not an issue?

13                    MS. LEE:     No, it's actively being sold, we
14    have -- there is a potential buyer.             But, yes, there's
15    going to be a lot of property, there's a lot of issues
16    concerning that.

17                    THE COURT:     Okay.        But then that's -- so
18    how did we get here to         how did we get here to me,
19    then, if Don Windle        he's been off the bench long
20    enough for Bonnie what's-her-face to be elected once, at
21    least --
22                    MS. LEE:     Well, regardless -- regardless

23    of --

24                    MR. SMITH:     I brought her profile if you

25    need it, but, yes, she --                                           Exhibit   J:3
                                                                          .....
                            CRC for Wells Reporting
     628                           817-524-6644
                                                                     Page 50
                     EXCERPT MOTION HEARING - July 31, 2014

 1                    THE COURT:     When did she first go on the

 2    bench?

 3                    MR. SMITH:      I don't know.       It just shows

 4    she's presently the judge.        Court, take judicial notice

 5    of that.

 6                     THE COURT:     That's true.       She may have

 7    been -- in 2005, he may have still been on bench, but I

 8    don't know the day he left, he retired.

 9                     MR. SMITH:     It doesn't matter.        It talks
10    about when you have a dispute, at that time you look and
11    see who's on the bench.

12                     MS. LEE:     But according 34.001, you are

13    allowed to transfer cases that are probate proceedings

14    that are related to the estate.              And that's why we're

15    asking for this to be brought over -- transferred over

16    here for judicial economy.         You know the players.

17                     Just to even get started over in Fannin
18    county, I -- without exaggeration, I'll need two days,
19    full,    just to -- with charts and diagrams.           This has
20    been going on since 2005.        This is very complicated
21    stuff.
22                     And you have the authority --

23                     THE COURT:     But that -- but I don't have
24    the authority to move it, because it's a complicated

25    case.

                              CRC for Wells Reporting
     629                            817-524-6644
                                                                                  Page 51
                      EXCERPT MOTION HEARING - July 31, 2014

 1                     MS. LEE:      No, your Honor, I didn't mean it

 2     like that --

 3                     THE COURT:      I know you know that.                 But I'm

 4     just saying, I can be sympathetic to your situation, but

 5     still not feel like I have the authority to do it.

 6                     MS. LEE:      Correct, your Honor.              It is the
 7     Pentex Foundation lawsuit is suing my clients and

 8     Howard Kirk Gibbs for attorney fees that were paid

 9     inappropriately through the estate.               That's exactly what

10     the lawsuit is.     Through the estate of Bert Gibbs, this
11     estate, in this Court.        They're suing my clients --

12                      THE COURT:     But the estate is not a party.
13                      MS. LEE:     Correct.    Because they won't

14                      THE COURT:     Doesn't that say it all,
15     though?

16                      MS. LEE:     Well, I can't even put him in as

17     a third-party defendant, because Ken is going to sue
18     himself?     Then he violates the family settlement
19     agreement.     It's the family settlement agreement that
20     they're trying to avoid.
21                      I did request the Court that the -- that

22     he's not being sued in his proper capacity.                   So if I go

23     to Fannin county, have that, have that heard

24                      THE COURT:     If you don't get your relief,

25     you may have to appeal it, because clearly, I don't --EI"b•ll<>'M2····.
                                                                                         X""hl '~" ~NitiJ ··,
      L-----------------------------------,.,~
                                             \J ~~~·'"·•.                                                                '.

                               CRC for Wells Reporting                    Page    '7./     /§:"                              \
     630                            817-524-6644                                           \3\                          I '"fl

                                                     e28bd4ed- 9dff -4 753 -b322 -14a0a6eekfj\.
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                                                                 Page 52
                     EXCERPT MOTION HEARING - July 31, 2014

1     mean, I don't know the underlying facts, but it's hard

2     to see how he, individually, could be, you know-- I'm

3     not going to go into that now.

4                      I'm going to give you another

 5    opportunity

 6                    MR. SMITH:     Okay.     I didn't get started.

 7    She went first --

 8                     THE COURT:    I know, I know.

 9                     MR. SMITH:    I think you hit the nail right

10    on the head when you those assets have already been
11    distributed.

12                     If you look -- and what SWEPI teaches us,

13    is you look at pleadings.        If you look at their

14    pleadings, there's not a hint that the estate is
15    involved in this.      It is involved a GWB Trust, which was

16    an entity created
17                     THE COURT:    To receive from the estate.

18                     MR. SMITH:         and so it had absolutely
19    nothing to do with the estate.          And that's what SWEPI
20    had -- what happened in SWEPI.          On page five of that
21    case, I know I didn't give you a copy, but the Court

22                     THE COURT:     I read SWEPI, I just don't

23    remember the -- I mean, everybody -- it's referred to a

24    lot, that and Huie v. DeShazo, SWEPI, there's a bunch of

25    them, there's a number of them.                                  Exhlbi   f3
                              CRC for Wells Reporting
     631                           817-524-6644
                                                                      Page 53
                      EXCERPT MOTION HEARING - July 31, 2014

 1                     MR. SMITH:      It was a mandamus case out of

 2    the Supreme Court.      And what they found was the interest

 3    had passed to the decedents.          And they said the fact no

 4    partnership property or partnership interests are

 s    currently held by the estate also distinguishes it from
 6    prior authority.      Here's the case, your Honor.

 7                      So the first question is, does this, in a
 8     jurisdictional analysis, looking at their pleading,
 9    which they conceded doesn't involve the estate, is the

10    controlling issue settlement petitioner distribution of

11    an estate?      No, it's not, because that's already
12    happened.

13                      And so if that is the case, this Court does

14    not have exclusive jurisdiction.              That's the teaching of

15    SWEPI.    And SWEPI was cited a little bit later, but I
16    don't know if I can pronounce it right, Puig, is the

17    Court familiar with this case?

18                      THE COURT:     It doesn't ring a bell, right
19     this minute.
20                      MR. SMITH:     Okay.        And there's another
21     Supreme Court case a couple of years back and they cited

22     SWEPI.   And what they said was, what you then do, if you
23     don't have exclusive jurisdiction, you do the dominant

24     jurisdiction analysis.        And that's where we believe

25

                               CRC for Wells Reporting
     632                             817-524-6644
                                                                              Page 54
                   EXCERPT MOTION HEARING • July 31, 2014

 1     has now got dominant jurisdiction over the proceedings.

 2                     And even though the issues are different,

 3     the guide for this Court is whether parties could be

 4     joined and, if feasible, under the compulsory

 5     counterclaim.

 6                     In other words, if you could add the

 7     parties and make it a complete proceeding, then the

 8     first filed suit is the one that's dominant.

 9                     And I don't know mean to insult the Court,

10     but I got a Fort Worth case out of 1995 Dallas Fire

11     Insurance versus Davis, and what it tells -- what its

12     holding is, is that when the principle of dominant

13     jurisdiction applies, the trial court in the second

14     action has no discretion to refuse to abate, and the

15     first court has no discretion to abate the suit to the

16     second court.

17                     So it sounds mandatory, to me, that if this

18     Court doesn't have exclusive jurisdiction, if it•s got
19     concurrent jurisdiction, and that's arguably what

20     they're saying by virtue of 34.001, we then lead to our
21     dominant jurisdiction analysis.           And under the cases

22     we've given you, you have to abate this case, in its

23     entirety, to the Fannin county proceedings.

24                     That's the position of Pentex Foundation.

25     And I can go into some of the facts, but

                             CRC for Wells Reporting
     633                          817-524-6644                                         \
                                                    e2Bbd4ed-9dff-4753-b322-14a0a6eel79~ •.
                                                                        Page 55
                    EXCERPT MOTION HEARING        ~   July 31, 2014

 1   read the pleading, which you're supposed to do, that's

 2   all you do.     You don't get into evidence.               You just look

 3   at pleadings, what they pertain to, if it's exclusive,

 4   if not, if there's dominant jurisdiction in another

 5   Court.     Here, there is.     It goes to Fannin county.

 6                    THE COURT:     Your motion, your final word?

 7                    MS. LEE:     Well, your Honor, the cases that

 8   he cites       we definitely are arguing two different

 9   things.     The one   -- the last one he spoke about,
10   the Puig, it talks about comparing county courts of law

11   with probate courts.        And it's not concerning

12   transferring the case with the authority to go into the

13   estate of Bert Gibbs or transferring a case for probate

14   proceedings into another -- into the probate court.

15                    The other case, SWEPI, again, they're

16   talking -- it's not --

17                    THE COURT:      It just seems like SWEPI fits,

18   though.
19                    MS. LEE:     I don't -- it doesn't
20   have -- this has to do with oil and gas rights.                  Here's
21   the big difference, there is still $8.1 million that our

22   clients are going to be fighting over --

23                    THE COURT:     Wouldn't the executor

24   distribute it according to the --

25                    MS. LEE:     Oh, no, your Honor,

                              CRC for Wells Reporting
 634                               817-524-6644
                                                                                  Page 56
                   EXCERPT MOTION HEARING - July 31, 2014

 1    that's the issue.     What happened when 2000

2                      THE COURT:    Well, maybe he'd have to come

 3    to court to get a declaratory judgment on how he's to
 4    distribute the fees, maybe, but I mean, all this
 5    happened after the property was distributed.
 6                     I mean, that's the way I read it -- I

 7    understand -- your pleading --

 8                     MS. LEE:     I understand

 9                     THE COURT:     -- they got together and did

10    this GWB especially to receive this property --

11                     MS. LEE:     GWB doesn't have anything to do

12    with this case in Fannin county.          It's about a contract

13    for sale.   It's a contract --

14                     THE COURT:     But the estate is not party in

15    Fannin county.

16                     MS. LEE:     But again

17                     THE COURT:     I just don't see how in the

18    world I can drag a case all the way down from Fannin
19    county when the estate is not a named party.

20                     MS. LEE:     They should have been.                They were
21    not sued in a legal capacity.         I mean, you've already
22    stated, your Honor, that my clients, individually, had

23    no authority to determine attorney fees.

24                     Again, they're running -- this is judicial

25    economy to have it all heard in one court.

                             CRC for Wells Reporting
     635                          817-524-6644                                                               ~~~i
                                                   e28bd4ed-9dff-4 753 -b322-14aOa6ee'l:'l7,\l)a          ~ lj5:
                                                                                           ''~::~(:~irt:{~;;:\,,
                                                            Page 57
                   EXCERPT MOTION HEARING · July 31, 2014

1                    THE COURT:    That's one of the cornerstones

2    of the creation of statutory probate courts in

3    metropolitan areas and the specific drafting of what I

4    call 5A and 5B, more particularly 5B, which has been

 5   superceded with a new number that I haven't memorized

 6   yet, was, indeed, so that there would be -- and it stems

 7   from a famous Texas case, Sarita Kenedy East, and she

 8   was a wealthy south Texas woman.

 9                   And her -- her, I think she died in

10   50-something and I don't think her estate was settled

11   until '69,   '70,   '72, because there were so many

12   different -- it was in litigation 20-something years,

13   because it went back and forth between county courts

14   that did not have jurisdiction, to district courts that

15   did, and then each issue was appealed to appellate

16   courts, all the way through the appellate courts to the

17   Texas Supreme Court.

18                   And it went on and on for years and in

19   1979, I believe it was, in response to that case, in

20   particular, and by the way, it was a name like Trejo

21   (phonetic) or something, they came up with the idea that

22   we judges here in metropolitan area have a law degree,

23   why should we be any different than a district court

24   judge in terms of hearing matters that district court
                                                                  Page 58
                       EXCERPT MOTION HEARING - July 31, 2014

1                       So there is rhyme and reason between why

2     there are statutory probate courts in metropolitan
 3    counties.    And to continue my lecture, I think thing

4     there are 18 of us now, in Texas.

 5                      But be that as it may, judicial economy is

 6    one of the -- a driving force, but it's not the

 7    only-- it's not the only consideration.

 8                       So I'm going to make a ruling that I'm

 9    going to deny the transfer of anything, without

10    prejudice, at this point in time.

11                      As far as your motion your show authority,

12    I think you've been put on notice, you ever come back to

13    this Court, you're going to need to comply or going to

14    need show in more detail why you don't need to comply

15    with more detail and strict predicate to your -- to your

16    hiring.     So

17                       MR. SMITH:     Your Honor, I intend to

18    continue to with comply your request.
19                       (End of excerpt)
20

21

22

23

24

25


                                CRC for Wells Reporting
     637                              817-524-6644
                                                                            Page 166
                      MOTION HEARING - August 20, 2014

1    THE STATE OF TEXAS)

2    COUNTY OF TARRANT)

3          I, Ashlee Wells, Official Court Reporter in and for

 4   the Probate Court No. 2 of Tarrant County, State of

 5   Texas, do hereby certify that the above and foregoing

 6   contains a true and correct transcription of all
 7   portions of evidence and other proceedings requested in

 8   writing by counsel for the parties to be included in
 9   this volume of the Reporter's Record, in the
10   above-styled and -numbered cause, all of which occurred

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

12         I   further certify that this Reporter's Record of

13   the proceedings truly and correctly reflects the

14   exhibits, if any, admitted by the respective parties.

15         I further certify that the total cost for the

16   preparation of this Reporter's Record is$               I~llo~s
                                                               ,.\t
                                                                                  and

17   was paid/will be paid by        Christy Lee
lS         WITNESS MY OFFICIAL    HAND    this the 15th day of
19   September, 2014.

20                               -L'\~t L~~~      f--, '-~C.J-        L./.;;r--
                                /s/ Ashlee R. Wells
21                              ASHLEE WELLS, Texas CSR 8684
                                Expiration Date:  12/31/15
22                              Official Court Reporter,
                                Probate Court Number 2
23                              Tarrant County, Texas
                                Fort Worth, Texas
24

25

                            CRC for Wells Reporting
     638
                                 817-524-6644
                                                  93528a42-9517-4327-8286-4abdbefabbbe
                                            SCOTT SMITH
                                     A TIORNEY AND COUNSELOR AT LAW


 E-MAIL: smithlaw@airmail.net                                         120 SOUTH CROCKETT STREET
 FACSIMILE: (903) 870-1446                                                         P.O. Box354
 TELEPHONE:   (903) 868-8686                                          SHERMAN, TEXAS 75091-0354


                                              August 5, 2014

 Honorable Pat Ferchill
 Judge, Tarrant County Probate
       Court Number Two
 The Old Comihouse
 100 W. Weatherford, Room 220A
 Fort Worth, Texas 76196

          RE: Candace Walton, et a!. v. Beverly Miller, Trustee, et al.; Cause
              Number 2005-0000126·2-D in the Probate Comt Number Two of
              Tarrant County, Texas.

 Dear Judge Ferchill:

      As you may recall, I appeared for a special appearance on behalf ofPentex
Foundation on July 31, 2014. In connection therewith, I testified regarding a
motion to show my authority to represent Pentex Foundation. At that time, I
was unsure of the source of payment of my initial retainer. I have reviewed my
records and the payments were each in the sum of $5,000 from Pentex Royalty
Trust and Mr. Albert Barcroft. I am also attaching a copy of a resolution from
Pentex Foundation regarding my engagement as their counsel. I thank you for
your attention to this matter.




TSS/bhs

cc:       Christy L. Lee, Esq.; Howard Kirk Gibbs, ProSe.




639
                             MINUTES OF THE BOARD OF DIRECTORS'
                               1\'IEETING OFPENTEX FOUI\'DATION


      A meeting ofthe Foundation Council ofPENTEX FOUNDATION, orgnni7.ed according to the
      laws of the Republic of Panama mld registered to microjacket twenty nine thousnnd five hundred
      ll!ld thirty six (29536), document one million three hundred fifty four thousand eight hundred
      ninety three (1354893) of the Mercnntilc Section of the Public Registry, it was celebrated in the
      city ofPanmna, Republic ofPnnamn on the fourth day (4tA) of August ofthc year two thousand
      and fourteen (2014) at 10 o'clock in the rooming (10 a.m.).

                             It was n meeting of all the known Directors:
                       Mrs. ANGELL! MARTHA POLANCO CARRASCO,
                    Mr. CARLOS ALBERTO RIVADENEIRA ESCUDERO and
                FERNANDO ELIAS BARAHONA PEREZ who had prior waived the call.

      The Ch11irman was Mrs. ANGELLI MARTIIA POLANCO CARRASCO, and the Secretary
      Mr. CARLOS ALBERTO RIVADENETRA ESCUDERO, both as holders of said positions.

      The quomm ha\•ing been confirmed, the Chairman opened the meeting slating that a question has
      emerged as to the authority ofMario Guilermo Hurtarte Arrivillaga, the Managing Director,
      Legal Affairs ofPENTEX FOUNDATION, to hire legal counsel in the United States for affairs
      requiring litigation. Specifically, the hiring of one Scott Smith, Attorney at Law, to represent
      PENTEX FOUNDATION in ongoing litigation involving PENTEXFOUNDATION in Fannin
      County, Texas, U.S.A.

      Upon motion presented, dul}• seconded, the following resolution was unanimously approved:


                                        IT IS HEREBY RESOLVED:

      That the Board ofPENTEX FOUNDATfON verifies that Mario Guilermo Hur!arte Atrivillaga is
      authorized to hire legal counsel on beh11lf of PENTEX FOUNDATION to litigate any necessary
      legal matters that might arise in the United States. Further, it is resolved that Mario Guilermo
      HurtartcArrivillaga, as Managing Director, Legal Affairs ofPENTEX FOUNDATION, was
      authorized to sign the "AGREEMENT FOR LEGAL SERVICES" hiring Scott Smith, Attorney
      At Law, to represent and provide legal services to PENTEX FOUNDATION on May 5, 2014, in
      Cause Number CV-14-41665 in Fannin County, Texas, U.S.A. Further, by this resolution,
      PENTEX FOUNDATION confirms Scott Smith, Texas State Bnr Number 18688900, as its
      attorney in Cnuse Number CV-14-41665 in Fannin County, Texas, U.S.A.; and, th11t Scott Smith
      has represented PENTEXI10UNDATION in Cause NumberCV-14-41665 in Frumin County,
      Texas, U.S.A., since May 5, 2014.

      B)• this resolution, it is further resolved that Mario Ouilenno HurtarteArrivillaga, the Managing
      Director, LegalAOairs ofPENTEX FOUNDATION, is authorized until fitrtber notice to make
      <my further necessary cJJw1ges in legal representation for PENTEX FOUNDATION in any legnl
      proceedings in the United States, and to make llll}' decisions aflecting PENTEX FOUNDATION
      in any of those legnl matters. The authority grnn1ed Mario Gui!ermo HurtarteArrivillaga is
      concurrent with, and does not limit or change, the authority granted Danny R. Unger through a
      Limited Power of Attorney from PENTEX FOUNDATION in a preceding resolution.

      There not being any other matter to attend the meeting was ac!,ioumed nt ele\'en (II :00} a.m. on
      the above mentioned date.




      The President, ANGELL! MARTHA POLANCO CARRASCO,


                                                                                                           Exhibit
                                                                                              Page        ;l   ot3
640
      The Secretary, CARLOS ALBERTO RIVADENEfRA ESCUDERO.


      The undersigned, Secretary of the foundation named PENTEX FOUNDATION by this means
      certifies that the above minutes is a true copy of its original. Tt agrees wi!h each and C\'CI')' one of
      its parts as the one that remains in the Book of Minutes of the foundation.




      The Sccretnry, CARLOS ALBERTO RIVADENEIRA ESCUDERO.




                                                                                                                 Exhibit

641                                                                                                  Page        .3   of -""-'"'~
Filters Used:                                                                                          Date Printed: 9/26/2014
1 Tagged   Record                                        Email Report                                  Time Printed: 12:45PM
                                                                                                         Printed By: LAURA
                                                                Form Format




  Date    8/06/2014     Time       6:20AM     6:20AM     Duration    0.00 (hours)   Code
  Subject    Judge Ferchill -July 31st hearing                                       Staff Christy L Lee
  Client     Walton, Candace L.                      MatterRef Trust Termination- GWB Family andMatterNo
  From       LCMorrisett@TarrantCounty.com
  To         hkgibbs@gmail.com; mossandcoxattorneys@Hotmail.com; Christy Lee; jhskotnik@gmail.com
  CCTo        Patrick Ferchill; Tina Clay
  BCCTo
  Reminders                      (days before) Follow N Done N Notify Y Hide N Trigger N Private N Status
   Custom1                                                            Custom3
   Custom2                                                            Custom4
                To:    Howard Gibbs, Pro Se
                Scott Smith, Esq.,
                Christy Lee, Esq.,
                John Skotnik, Esq.
                Fr: On behalf of, the Honorable Patrick Ferchill,
                RE: Cause Number: Motion tq Transfer, Motion to Abate, and Motion to Show Authority


                Dear Counsel and Parties ProSe,

                       Having taken the above mentioned Motions under consideration, the
                Court is of the opinion, and rules that:

                1) The Plaintiff's Motion to Transfer is Denied;
                2) The Defendents' Motions to Abate are Denied;
                3) The Plaintiff's Motion to Show Authority is continued, pending provision
                of further information and in the hope that it may now be rendered moot in light
                of the above rulings.

                Ms. Cox, Ms. Lee, Mr. Smith, please exchange orders amongst yourselves and with
                Mr. Gibb, and hopefully provide the Court with orders, agreed as to form. If such
                orders can't be agreed upon, set a hearing with Ms. Tina Clay to resolve any issues.

                Ms. Cox, Ms. Lee, Mr. Smith and Mr. Gibb, please go to our Website
                http://www.tarrantcounty.com/ePC02/site/default.asp, and go to the "Decedents Estate Forms" button,
                the "Contested Estate
                Litigation" portion, and pull up our scheduling order. General procedure in our Court is
                for the parties to come to an agreed scheduling order to be signed by me. If you
                can't agree on the dates in question, please set a scheduling conference with me
                sometime next week by calling Chevron Pollard (817) 884 2794.

                Since this is a complex case, and since our normal scheduling would put trial
                it right in the holiday season, I would request you not set final trial on the
                merits during the last two weeks of the year. Accordingly, please call Tina Clay for
                a pre-trial hearing and trial date in which avoids the last week of December.
                This paragraph is not to be interpreted as having any impact on the scheduling of
                restraining orders, injunctive relief, and other time sensitive matters, if any.

                Finally, this Court has not ordered mediation in, I believe, three cases in


       642                                                              1
Filters Used:                                                                                            Date Printed: 9/26/2014
1 Tagged   Record                                        Email Report                                    Time Printed: 12:45PM
                                                                                                             Printed By: LAURA
                                                                Form Format



                over 30 years. I sincerely doubt yours will be the fourth. Accordingly, note that
                the scheduling order gives you a date by which the parties will pick a mediator,
                mediate, and report back to the Court. If this date is not met, the Court will take
                these actions on your behalf.

                       Please call me if you have any questions,

                       Lin Morrisett,
                       Associate Judge,
                       Probate Court #2,
                       Tarrant County




                                                                        2                             Page
        643
Texas Comptroller of Public Accounts- Taxable Entity Search Results                                Page 1 of 1




             '




       *
         '                                                                    Taxable Entity Search
                 '




                              Business Name Pentex Foundation was not found.

                   You may also call the Business Information Line at 1-800-252-1386.
             Should you require assistance concerning the taxable entity information presented,
                                  please contact tax.help@cpa.state.tx.us.


   texas.gov         Statewide Search from the Texas State Library   State Link Policy    Texas Homeland
                                                   Security
          Susan Combs, Texas Comptroller • Window on State Government • Contact Us
   Privacy and Security Policy Accessibility Policy Link Policy Public Information Act Compact
                                             with Texans




                                                                                                 Exhibit (

                                                                                   Page      I
   644
https://mycpa.cpa.state.tx.us/coa/servlet/cpa.app.coa.CoaSearch?Search_Nm=Pentex+Fou...
Texas Comptroller of Public Accounts- Taxable Entity Search Results                               Page 1 of 1




  f) \X'indow on State Gon:rnrncnt

                                                                             Taxable Entity Search


                         Business Name Pentex Royalty Trust was not found.

                 You may also call the Business Information Line at 1-800-252-1386.
           Should you require assistance concerning the taxable entity information presented,
                                please contact tax.help!(i:;cpa.state .tx. us.


   texas.gov    Statewide Search from the Texas State Library       State Link Policy   Texas Homeland
                                                 Security
          Susan Combs, Texas Comptroller • Window on State Government • Contact Us
   Privacy and Security Policy Accessibility Policy   Link Policy Public Information Act Compact
                                             with Texans




                                                                                                  Exhibit   L
                                                                                    Page    ;?
    645
https://mycpa. cpa. state. tx. us/coa!servletlcpa.app.coa. CoaSearch ?Search_Nm= Pentex+Roy ...
Texas Comptroller of Public Accounts- Taxable Entity Search Results                         Page 1 of 1




  e \\:'indow     on   State (~OV(;rJ11ll!;rl{


                                                                          Taxable Entity Search


                            Business Name Renhaw, Inc. was not found.

                You may also call the Business Information Line at 1-800-252-1386.
          Should you require assistance concerning the taxable entity information presented,
                              please contact tax.help({/)cpa.state.tx.us.


   texas.gov   Statewide Search from the Texas State Library    State Link Policy   Texas Homeland
                                              Security
          Susan Combs, Texas Comptroller • Window on State Government • Contact Us
   Privacy and Security Policy Accessibility Policy Link Policy Public Information Act Compact
                                             with Texans




                                                                                       Exhibit      j{
                                                                             Page      5       of    'i
    646
https://mycpa.cpa.state.tx.us/coalservlet/cpa.app.coa.CoaSearch?Search_Nm=RenhaWO/o2C ...
Texas Comptroller of Public Accounts - Taxable Entity Search Results                         Page 1 of 1



  f) \X-'indow on State c;ovcrn rnt:nt

                                                                           Taxable Entity Search


                 Business Name GBU Friends and Associates Trust was not found.

                 You may also call the Business Information Line at 1-800-252-1386.
           Should you require assistance concerning the taxable entity information presented,
                                please contact tax.help(li!cpa.state.tx.us.


   texas.gov   Statewide Search from the Texas State Library     State Link Policy     Texas Homeland
                                               Security
          Susan Combs, Texas Comptroller • Window on State Government • Contact Us
   Privacy and Security Policy Accessibility Policy Link Policy Public Information Act Compact
                                             with Texans




                                                                                Page

    647
https://mycpa.cpa.state. tx. us/coa/servlet/cpa.app.coa.CoaSearch?Search_Nm=G BU+Friend ...
                                       CAUSE No. 2005-0000126-2-D

 CANDACE WALTON, AND                               )                 IN THE PROBATE COURT
 KENNiml GIBBS,                                    )
      PLAINTIFFS,                                  )
                                                   )
 vs.                                               )                 No.2
                                                   )
 BEVERLY MILLER, INDIVIDUALLY AND AS     )
 TRUSTEE OF GWB FAMILY AND FRIENDS TRUSf,)
 ETAL.                                             )
         DEFENDANTS.                               )                 TARRANT COUN1Y, TEXAS


                              AFFIDAVIT OF COUNSEL IN SUPPORT OF
                                  MOTION TO SHOW AUTHORITY

 STATE OF ALASKA                          )
                                          )
 1HIRD JUDICIAL DISTRICT                  )

         I, Christy Lee, being first duly sworn upon oath, depose and state as follows:

         1.       I am Counsel of Record for Candace Walton and Kenneth Globs in this matter.

         2.       On April 25, 2014, Candace Walton and Kenneth Gibbs filed their Motion to

 Show Authority ("Motion").

         3.       I affinn that the Motion to Show Authority and the First Supplement and its

 Exhibits accompanying the First Supplement Motion present true and correct copies of

 correspondence and other documents produced by Pentex Foundation ("Pentex"); a correct copy

 of the Transcript from the July 31, 2014, hearing in Tarrant County Probate Court No. 2; and

 notification from the Texas Comptrollers of Public Accounts.

         Further the Affiant saith not




 APFIDAVIT OF COUNSEL IN SUPPORT OF                                       CAUSE NO. 2005-0000126-2-D
 MonON TO SHOW AU1HORI1Y
 Walton and Gibbs vs. Miller, et al.


648                                                                             Page
                                          Christy L. Lee


       SUBSCRIBED AND SWORN TO before me by Christy L. Lee on this 261h day of
 September, 2014, to attest witness my hand and seal of office.


                                              ',,             -     1.·   1"//
                                            ./· J(;;.....__   ,'   //'LY.:.
                                                                          --·-·-·--·
                                          Jli1otiry Public 'in and for thGstate of Alaska
                                          My Commission expires: June 15,2015




 AFFIDAVIT OF COUNSEL IN SUPPORT OF                                 CAUSE NO. 2005-0000126-2-0
 MOTION TO SHOW AUTIIORITY
 Walton and Gibbs vs. Miller, et at.                                                       -2-
                                                                                        Exhibit   J-
649                                                                              Page_~of
                                    CAUSE No. CV-14-41665

PENTEXFOUNDATION                                 )
      PLAINTIFF,                                 )
                                                 )
vs.                                              )
                                                 )
KENNETII VERN GIBBS; AND                         )
CANDACE GIBBS WALTON; AND                        )
HowARD KIRK GIBBS,                               )
     DEFENDANTS.                                 )                 FANNIN COUNTY, TEXAS

            ORDER APPROVING KENNETH GmBS AND CANDACE WALTON'S
                                MOTION TO CHANGE VENUE

       On the 30th day of September, 2014, came to be heard Kenneth "Ken" Gibbs and

Candace "Candy" Walton's Motion to Change Venue. Having reviewed the Motion, and upon

consideration of all facts presented, the Court has determined that proper venue for the matter is

Tarrant County, Texas.


       IT IS THEREFORE ORDERED, ADJUDGED, and DECREED that:

       1.      The Motion to Change Venue is approved;

       2.      This matter shall be transferred to   f« (avvf            County, Texas; and



       SIGNED this -A,L3_o__ day of _        ___;~'---lip;Lf"'--'------'' 2014.


                                              Laur~Judge


650
                        SEPTEMBER 30, 2014 DOCKET

  1.   Motion to Show Authority, Motion for Change of Venue, Original
       Answer, Affirmative Defenses, Original Counterclaim, and Rule 13,
       Motion for Sanctions of Kenneth Vern Gibbs and Candace Walton
       Gibbs. (filed 4-23-14)

       A.    Response to Motion to Transfer Venue (filed 9-4-14)
       B.    First Supplement to Motion to Show Authority

  2.   Plaintiffs Motion to Compel (filed 7-18-14)

  3.   Plaintiff and Intervenor's Motion for Partial Summary Judgment (filed
       8-12-14)

       A.   Response to Motion
       B.   Objections to Response (filed 9-29-14)

  4.   Motion to Quash or for Protective Order Relating to Subpoenas and
       Deposition Notices (filed 9-4-14)

       A.   Defendants' Motion to Compel Appearance and Testimony of
            Angelli Carrasco at Hearing on September 30, 2014 (filed 9-15-
            14)

       B.   Defendants' Motion to Compel Appearance and Testimony of
            Albert Barcroft at Hearing on September 30, 2014 (filed 9-15-14)

       C.    Objections by Gibbs and Walton

 5.    Defendants' Motion for Leave of Court to File Third-Party Petition
       (filed 9-15-14)




651
0

                                             No. CV-14-41665

    PENTEX FOUNDATION                             §
     Plaintiff                                    §
                                                  §
    v.                                            §
                                                  §
    KENNETH VERN GIBBS,                           §
    CANDACE GIBBS WALTON, &                       §
    HOWARD KIRK GIBBS,                            §
     Defendants                                   §               336m DISTRICT COURT

           MOTION FOR PROTECTION FROM AND OBJECTION TO SUBPOENA

    TO THE HONORABLE COURT:

           John Skotnik, hereafter referred to as MOVANT, timely objects and moves this Court for an
    order protecting movant from the provisions of a subpoena and subpoena duces tecum ordering
    movant to testify and produce documents in this matter. In support of this request, movant and
    shows:

    1. On or about September 4, 2014 Ken & Candy Gibbs served a subpoena on movant, ordering
       movant to appear and testify at a hearing scheduled for September 30, 2014 at the courtroom of
       this Honorable Court, there to give testimony and produce documents and communications. A
       true and correct copy of that subpoena is attached as Exhibit "A" to this motion, and
       incorporated by reference.

    2. Movant specially appears is not voluntarily appearing for purposes of questioning or
       examination, rather he is appearing out of deference to this Court to present this Motion.

    3. Movant further avers that he is not a party to this cause and is not current counsel for any party
       herein, he previously represented the plaintiff in this cause, thus any information or testimony
       sought would be protected by attorney client privilege. TRE 503.

     4. Movant further avers that he is barred by the Rules of the State Bar of Texas from disclosing
        privileged attorney client information.

     5. Movant avers that TRCP 12 by its language envisions only the current counsel of record as
        "challenged attorney" for a party to be subject of a Motion to Show Authority.

     6. Movant avers that TRCP 12 by its language mandates that a Motion to Show Authority must be
        sworn and served upon the "challenged attorney" (i.e. counsel of record) at least 10 days before
        the hearing.

     7. Movant avers that there is not a properly sworn motion under TRCP 12 that has been on file for
        10 days prior to the hearing before this Court referenced herein, therefore Movant should not be
        required to appear and testify.



    652
8. Movant avers that hearings on a properly filed TRCP 12 motion would be limited to exactly
   what the rule covers, that is the attorney's authority to act on behalf of the client, and nothing
   else.

9. Movant avers that there is no endorsement of or by whoever served the subpoena. 1RCP 16

10. Movant avers that there is no return on the subpoena showing who served the subpoena and
    whether that person was authorized to serve under TRCP 103 or 106(a)(2).

11. Movant avers that there is no proper proof of service on file with the Court. TRCP 176.5(b)

12. Movant avers that he was not provided a witness fee at the time of purported service and the
    failure to provide the fee renders the service and subpoena void. CPRC 22.001; 1RCP 176.5(a);
    DM -0342

13. Movant avers that the subpoena referenced herein is a discovery subpoena.

14. Movant avers that he is not aware of any court order for him to appear or produce discovery.

15. Movant objects to the subpoena and further requests that the court quash the subpoena impose
    the limitations, restrictions, and modifications to the subpoena as sought herein, because the
    subpoena is improper or unreasonable and oppressive and compliance would result in serious
    and irreparable harm to movant.

 16. The testimony sought and the documents requested in the subpoena are not relevant to the
     issues in this action and are protected from compulsory disclosure by the work product and
     attorney client privilege and is not governed by any exceptions therein. TRE 503.

         WHEREFORE, movant requests that this Court hear this motion and make an order
 quashing the subpoena and awarding movant the reasonable costs of this motion, including
 attorney's fees, together with other relief as the Court may find appropriate.




Joh Skotnik, sbn 18475150
P. Box 727
Bonham, Texas 75418
(903)640-4300 * FAX 640-4344
Attorney and Movant
                                           Certificate of Service
         This is to certify that a true and correct copy of the foregoing Motion for Protection and
 Objection to Subpoena was served on all parties of cord this day in accordance with the applicable
 rules of procedure.

 30 Sep 2014




653
                                                      VERIFICATION

                                          State rfTexai        §   County rfFannin

        On this day, John Skomik appeared before me, the undersigned notary public, and after I
administered an oath to him, upon his oath, he said that he read the foregoing Motion for
Protection and Objection to Subpoena and that the acts in it are within his personal knowledge and
true and correct.




        SWORN TO and SUBSCRIBED before m by John Skomik on the 30th day of September,
2014.

                   .
              '''" "'''
            $t~·~.'~f~'-..            TINA CASHION
            f''(          \"'~ Notary Public, State of Texas
            \_-;i. ...~..§ My Commission Expires
              "'·1~£;.:.1~~,,.,.  September 29, 2015                Notary Public in & for the State of Texas




654
      Exhibit "A"




655
                                      CAUSE NO. CV-14-41665

PENTEX FOUNDATION                                 )                   IN THE DISTRICT COURT
      PLAINTIFF,                                  )
                                                  )
vs.                                               )                   336TH JUDICIAL DISTRICT
                                                   )
KENNETH VERN GIBBS; AND                            )
CANDACE GIBBS WALTON; AND                          )
HOWARD KIRK GIBBS,                                 )
      DEFENDANTS.                                  )                  FANNIN COUNTY, TEXAS

                                THE STATE OF TEXAS SUBPOENA

TO:      John Skotnik, attorney, 301 E. 5th Avenue, Bonham, Texas 75418.

         YOU ARE COMMANDED by the State of Texas to appear before the 3361h Judicial

District Court, Fannin County, at 101 E. Sam Rayburn Drive, Suite 200, Bonham, Texas 75418,

on the 301h day of September, 2014, at 8:30 o'clock a.m., to attend and give testimony on

Defendant's Motion to Show Authority.

                                  ENFORCEMENT OF SUBPOENA

         Pursuant to Texas Rules of Civil Procedure No. 176.8, failure by any person without

adequate excuse to obey a subpoena upon that person may be deemed a contempt of the court

from which the subpoena is issued or a district court in the county in which the subpoena is

served, and may be punished by fine or confinement, or both.

                                          INSTRUCTIONS

                 A.      If you object or otherwise decline to respond to any portion of a request,

      provide all documents for that portion of the request to which you do not object or decline to

      respond.

                 B.      If you object to a request on the grounds that it is too broad (i.e., that it

      calls for both relevant and irrelevant information), provide such documents which are
THE STATE OF TEXAS SUBPOENA                                                     CAUSE No. CV- I 4-41665
PENTEX FOUNDATION VS. GIBBS, ET AL.                                                                 -I-



656
      concededly relevant.

                  C.       If you object to a request on the grounds that it would constitute an undue

      burden, provide such requested documents as can be supplied without undertaking an undue

      burden.

                  D.       If you object to any portion of a request because of a claim of privilege,

      identify all persons to whom such documents were disclosed, the general nature of such

      documents, the nature of the privilege asserted, and the dates of any communications or

      documents from which such privilege is asserted. You are further directed to redact and

      disclose any portion of such document that is concededly not privileged.

                                             DUCES TECUM

 1.      You are hereby requested to make available the documents listed below at the above-

 mentioned time and place.

         A. A true and correct copy of all documents, including tape recordings, and

                emails showing that you had the legal authority on behalf of Pentex

                Foundation to file a lawsuit in Fannin County against Defendants.

         B. A true and correct copy of all documents, including tape recordings, and

                emails in which you had communication with the Directors of Pentex

                Foundation concerning filing this lawsuit in Fannin County.

          C. A true and correct copy of all documents, including tape recordings, and

                emails in which you had communication with Albert Barcroft concerning

                filing this lawsuit in Fannin County.

          D. A true and correct copy of cancelled checks you received from Pentex

                Foundation or on behalf of Pentex Foundation to pursue this lawsuit in Fmmin

 THE STATE OF TEXAS SUBPOENA                                                     CAUSE No. CV-14-41665
 FENTEr FOUNDATION VS. GIBBS, ET AL.                                                                -2-




657
        E. A true and correct copy of the engagement letter with Pentex Foundation.

2.      The subpoena is prepared and issued for Defendants Kenneth Gibbs and Candace

Walton, by Counsel, in accordance with Rule 176 ofthe Texas Rules of Civil Procedure.


        Issued on August 28, 2014.

                                                   LAW OFFICES OF CHRISTY LEE, P.C.




                                                   Christy L. Lee
                                                   Texas State Bar No. 24052302
                                                   777 Main Street, Suite 600
                                                   Fort Worth, TX 76102
                                                   Office: (817) 504-6075
                                                   Fax: (800) 437-7901
                                                   cleei'd!christvleelaw.com

                                                    ATTORNEY FOR DEFENDANTS




THE STATE OF TEXAS SUBPOENA                                                CAUSE No. CV -14-41665
PENTEX FOUNDATION I'S. GiBBS, ETAL.                                                           -3-




658
0\
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\0


     LAW OFFICES OF



     Cbi!f~,
     225 E. FIR~ED LANE STE. 200
     ANCHORAGE, ALASKA 99503
                                   I II~ I II Ill IllII
                                   7014    0~1Q_OOOO            1381 9167
                                                                                                   //IIIII
                                                                                                                       $6.48QI:• ~~
                                                                                                                    US POSTAGE
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                                                                                                                     FROM 99503
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                                    '''''''''( r•l' 'm•r••·~l'•'h 'hf•l''" hhl"l•'r·'··lrud Irl'
                                    JOHN SKOTNIK
                                    301 E 5TH St
                                    BONHAM TX 75418-4002




                                                                                         -------------------------------------~-----------~
                                        NO. CV-14-41665

 PENTEX FOUNDATION,                              §
               Plaintiff                         §
                                                  §
 ~                                                §
                                                  §        FANNIN COUNTY, TEXAS
 KENNETH VERN GIBBS, CANDACE                      §
 GIBBS WALTON and HOWARD                          §
 KIRK GIBBS,    Defendants                        §        336th JUDICIAL DISTRICT

                              MOTION TO RECONSIDER
                             ORDER TO TRANSFER VENUE

 TO THE HONORABLE JUDGE OF SAID COURT:

        COME NOW, Pentex Foundation, Plaintiff, and Joshua Unger, Trustee of

 the GBU Friends and Associates Trust, Intervenor, in the above entitled and

 numbered cause, file this Motion to Reconsider the Order Granting the

 Defendants' Motion to Transfer Venue, and in support of the order shows:

                                        INTRODUCTION

         1.     Venue is mandatory in Fannin County, Texas, as the case arises from

 a contract involving a major transaction. This year the Supreme Court reaffirmed

 the application of these rules in In Re Fisher, 433 S.W.3d 523 (Tex. 2014),

 making it very clear that the Court has no discretion to transfer venue. Mandamus

 relief is available, but movants would prefer to request this Court to reconsider its




 MOTION TO RECONSIDER ORDER TO TRANSFER VENUE ... PAGE I




660
 ruling first. 1

                                 FACTUAL BACKGROUND

        2.         This case concerns and arises from contract entered into between the

 defendants and the predecessor in interest to Plaintiff and Intervenor. 2 The

 Contract itself, at paragraph 4 ofthe contract references a buyout and liquidated

 damages provision of $5,000,000, as follows:

        It is understood and agreed that Gibbs may cancel or nullify this
        contract only under the following conditions: a) If Gibbs pays over to
        Barcroft the sum of five million dollars ($5,000,000.00 US) in full, in
        addition to any money received prior to said one time payment, as
        liquidated damages and full settlement of all consideration on Gibbs
        part.

 Contract ,-r 4 (emphasis original). The present dispute involves allegations that in

 excess of a million dollars were not distributed pursuant to the terms of the

 Contract. Paragraph 37 of the Plaintiffs Original Petition in this case alleges:

         Plaintiff has had over a million dollars of money rightfully due
         Plaintiff taken by Ken, Candy and Howard to pay the attorney fees
         that were due to be paid only by Ken, Candy and Howard under


                Mandamus relief is specifically authorized to enforce a statutory mandatory
 venue provision. TEX. CIV. PRAC. & REM. CODE§ 15.0642. See also, Fisher, 433 S.W.3d at 528.
 A copy of the opinion in Fisher is attached hereto as Plaintiffs Exhibit 1.
         2
                A true and correct copy of that contract was attached to the Response to Motion to
 Transfer Venue, filed on September 4, 2014, as Plaintiffs Exhibit "A". It shall be referred to as
 the "Contract." It's authenticity is not in dispute. Also attached to the Response was Plaintiffs
 Exhibit "B" is a copy of a portion of the Response to a Request for Admissions, by which the
 Contract is acknowledged in Response to Request for Admission number 1.
 MOTION TO RECONSIDER ORDER TO TRANSFER VENUE ... PAGE 2




661
        written agreement, i.e. the Contract here. 3

 The prayer in the Plaintiffs Original Petition requests, "All actual damages; but,

 in any case, no less than one million dollards [$1,000,000.00];."

        3.      Importantly the Contract addressed venue in a very direct and forceful

 manner in paragraph 9:

        Notwithstanding any other provisions of the law, it is expressly
        agreed that this contract shall be performable only in Fannin County,
        Texas; and, any dispute(s) will be resolved in the Courts of Fannin
        County, Texas.

 (Emphasis original).

        4.      A copy of the Contract was attached to the Plaintiffs Original

 Petition; the existence of the Contrac was asserted; the specific agreement for

 venue to be exclusively in Fannin County, Texas was described; and the amount of

 damages sought were all specifically pleaded venue facts that were not denied by

 the Defendants. 4




        3
                  The Petition was filed on April 1, 2014. A copy of excerpts of Plaintiffs Original
 Petition is attached hereto as Plaintiffs Exhibit 2.
        4
                TEX. R. Clv. P. 87(3)(a)("properly pleaded" venue facts taken as true unless
 specifically denied by adverse party.); Maranatha Temple, Inc. v. Enter. Products Co., et. al.,
 833 S.W.2d 736 (Tex. App.- Hou. [1st Dist.] 1992, writ denied)
 MOTION TO RECONSIDER ORDER TO TRANSFER VENUE ... PAGE 3




662
                                            THE LAW

        5.      Contractual venue provisions are mandatory and enforceable. Section

 15.020 of the Texas Civil Practices and Remedies Code applies to a "major

 transaction," which is defined as a transaction evidenced by a written agreement

 and which involves $1 million or more:

         (c) Notwithstanding any other provision of this title, an action arising
        from a major transaction may not be brought in a county if:

                (1) the party bringing the action has agreed in writing
                that an action arising from the transaction may not be
                brought in that county, and the action may be brought in
                another county of this state or in another jurisdiction; or

                (2) the party bringing the action has agreed in writing
                that an action arising from the transaction must be
                brought in another county of this state or in another
                jurisdiction, and the action may be brought in that other
                county, under this section or otherwise, or in that other
                jurisdiction.

 TEX. CIV. PRAC.     & REM. CODE§ 15.020. It is the firm and well-established policy

 in this State to give force and effect to forum selection clauses:

        In general, forum-selection clauses should be given full effect, and
        subjecting a party to trial in a forum other than the contractually
        chosen one amounts to "'clear harassment' ... injecting inefficiency
        by enabling forum-shopping, wasting judicial resources, delaying
        adjudication on the merits, and skewing settlement dynamics .... "

 In re AutoNation, 228 S.W.3d 663, at 667-68 (Tex. 2006).



 MOTION TO RECONSIDER ORDER TO TRANSFER VENUE ... PAGE 4




663
        6.      This is a major transaction as defined by law. A "major transaction"

 is a transaction evidenced by a written agreement under which a person pays or

 receives, or is obligated to pay or entitled to receive, consideration with an

 aggregate stated value equal to or greater than one million. Accordingly, the

 Contract constitutes a "major transaction" for purposes of section 15.020 because

 it expressly provides- in paragraph 4- for the payment of "consideration with an

 aggregate stated value" of more than $ 1 million. Although movants assert that

 their damages directly relate to the Contract, associated claims trigger the

 mandatory venue if they "arise" from a major transaction.

        We concluded that the forum selection clause itself applied more
        broadly than to mere sales transactions because it applied to "any
        dispute arising out or' the agreement and the trial court erred in
        refusing to enforce the forum selection clause.

 Fisher, 433 S. W.3d at 530, citing Lisa Laser, 310 S. W.3d 880, 887 (Tex. 201 0).

                                          NO FINDINGS

        7.      Finally, the Defendants only requested that venue be changed

 pursuant to TEX. CIV. PRAC. & REM. CODE§ 15.002. Although it is clear that

 mandatory venue provisions trump permissive ones, there is a want of required

 findings. 5 The Court did not enter or render any findings in support of the

         5
               Airvantage, L.L. C. v. TBAN Properties# 1, L. T.D., 269 S. W3d 254, 257 (fex.
 App.-Dallas 2008, no pet.) (citing Wichita County v. Hart, 917 S.W2d 779, 781 (fex.1996).
 Further, section 15 .020(c) provides in pertinent part that, when applicable, section 15.020

 MOTION TO RECONSIDER ORDER TO TRANSFER VENUE ... PAGE 5



664
 transfer. To order the transfer pursuant to§ 15.002, the court must make all of the

 following findings:

         1.     Maintenance of the action in the county of suit would work an
                injustice to the movant considering the movant's economic and
                personal hardship.

        2.      The balance of interests of all the parties predominates in favor of the
                action being brought in the other county.

        3.      The transfer would not work an injustice to any other party.

 TEX. CIV. PRAC. & REM. CODE§ 15.002(b).

        WHEREFORE, Pentex Foundation, Plaintiff, and Joshua Unger, Trustee of

 the GBU Friends and Associates Trust, Intervenor request that the Court

 reconsider and upon such reconsideration deny the motion to transfer venue, and

 other and further relief to which movants may be entitled.




                                            B

                                                State Bar Number 18688900
                                                120 South Crockett Street
                                                P.O. Box354
                                                Sherman, Texas 75091-0354
                                                e-mail smithlaw@airmail.net
                                                Facsimile (903) 870-1446
                                                Telephone (903) 868-8686



 controls over other venue statutes in title 2 of the Civil Practice and Remedies Code. See TEX.
 CIV. PRAC. & REM. CODE§ 15.020(c). In In Re Railroad Repair, 2009 Tex. App. LEXIS 8404
 (Tex. App.- Dallas, 11-9-09), the Court specifically found that venue under section 15.002, a
 permissive venue statute, must yield to the mandatory venue provision in section 15.020.
 MOTION TO RECONSIDER ORDER TO TRANSFER VENUE ... PAGE 6



665
                                CERTIFICATE OF CONFERENCE

        On October 2, 2014, the undersigned conferr with Christy Lee, counsel for Defendants,
 concerning the relief requested by this Mof     s. L was not in agreement.




                                                   FIAT

       The above and foregoing motion shall be heard by the Court on the _ _
 day of                   , 2014, at             o'clock, _.m.


                                                  JUDGE OR CLERK OF THE COURT

                                       CERTIFICATE OF SERVICE

          I do hereby certify that a true and correct copy of the above and foregoing document was served,
 by certified mail, return receipt requested number 7009 2250 0000 2311 4217 toChristy L. Lee, Esq., of
 Law Offices of Christy Lee, P.C., 777 Main Street, Suite 600, Fort Worth, Texas 76102, and to Howard
 Kirk Gibbs, ProSe, at 4360 Western Center Bl            mte         Worth, Texas 76137, on this the 3'd day
 of September, 2014.




 MOTION TO RECONSIDER ORDER TO TRANSFER VENUE ... PAGE 7




666
                                                                                                                 Page I
                                    433 S.WJd 523, *; 2014 Tex. LEXIS 379, **;
                                               57 Tex. Sup. J. 504




                LexisNexis®
                        IN REMARK FISHER AND REECE BOUDREAUX, RELATORS

                                                    N0.12-0163
                                                                                                      PLAINTIFPS
                                          SUPREME COURT OF TEXAS                                        EXHIBIT
                             433 S. W.3d 523; 2014 Tex. LEXIS 379; 57 Tex. Sup. J. 504                     I
                                            October 10, 2013, Argued
                                       February 28,2014, Opinion Delivered

 NOTICE:                                                    whether the trial court abused its discretion by failing to
                                                            enforce venue selection clauses in the acquisition
    PUBLICATION STATUS PENDING. CONSULT
                                                            documents. Concluding that it did, we conditionally grant
 STATE RULES REGARDING PRECEDENTIAL
                                                            relief.
 VALUE.
                                                            I. Background
 SUBSEQUENT HISTORY: Rehearing denied by In re
 Fisher, 20/4 Tex. LEXIS 369 (!'ex., May 2, 2014)                On May 3, 2007, Mike Richey sold his interest in
                                                            Richey Oilfield Construction, Inc. (Richey Oil), an
 PRIOR HISTORY: In re Fisher, 2014 Tex. LEXIS 164           oilfield services company that he founded and operated,
 (!'ex., 2014)                                              to Nighthawk Oilfield Services, Ltd. (Nighthawk) for
                                                            $33 million. NOSGP, L.L.C. was Nighthawk's general
                                                            partner and Mark Fisher and Reece Boudreaux were
 COUNSEL: For Mike Richey, Real Party in Interest;          limited partners. The transaction resulted in Richey Oil
 Allen Linn Williamson, Derrick S. Boyd, Simpson Boyd       becoming a wholly-owned Nighthawk subsidiary, with
 & Powers PLLC, Decatur TX; Brian Scott Stagner,            Richey remaining employed as president of Richey Oil
 David E. Keltner, Derek Lee Montgomery, Jason Chad         and becoming a limited partner in Nighthawk.
 Nash, Mary H. Smith, Kelly Hart & Hallman LLP, Fort
                                                                The primary agreements regarding the transaction
 Worth TX.
                                                            were a Stock Purchase Agreement, an agreement for the
                                                            purchase of Richey Oil's goodwill [**2) (the Goodwill
 For Mark Fisher, Reece Boudreaux, Relators: Pamela
                                                            Agreement), and a Promissory Note. Each contained a
 Stanton Baron, Attorney at Law, Austin TX; Steven K.
                                                            clause naming Tarrant County as the venue for state
 Hayes, Law Office of Steven K. Hayes, Fort Worth TX;
                                                            court actions.
 Thomas J. Sims, Parrott Sims & Mcinnis PLLC, Houston
 TX.                                                             In the Stock Purchase Agreement, NOSROC, Inc.'
                                                            agreed to pay Richey $13 million in cash for Richey Oil's
 JUDGES: ["""1) JUSTICE JOHNSON delivered the               issued and outstanding stock. That agreement contained
 opinion of the Court.                                      the following provision:

 OPINION BY: Phil Johnson                                              Jurisdiction; Service of Process. Any
                                                                   proceeding arising out of or relating to
 OPINION                                                           this Agreement may be brought in the
                                                                   courts of the State of Texas, Tarrant
  [*525) ON PETITION FOR WRIT OF MANDAMUS                          County, or if it has or can acquire
                                                                   jurisdiction, in the United States District
     After Nighthawk Oilfield Services, Ltd. acquired
                                                                   Court for the Northern District of Texas,
 Richey Oilfield Construction, Inc. from Mike Richey, the
                                                                   and each of the parties irrevocably
 business did not go as well as the parties had hoped and
                                                                   submits to the non-exclusive jurisdiction
 Richey filed suit in Wise County against two Nighthawk
                                                                   of each such court in any such proceeding,
 executives. In this mandamus proceeding we consider




667
                                                                                                                   Page 2
                                       433 S.WJd 523, *; 2014 Tex. LEXIS 379, **;
                                                    57 Tex. Sup. J. 504
        waives any objection it may now or                      percent would be paid back. Fisher claims that the other
        hereafter have to venue or to convenience               limited partners made similar contributions totaling $3.9
        of forum, agrees that all claims in ["'526]             million, but they agreed that those contributions would
        respect of the proceeding may be heard                  be treated as equity, not loans.
        and determined in any such court and
                                                                     Richey asserts that when he asked Fisher to repay
        agrees not to bring any proceeding
                                                                the $1 million as agreed, Fisher denied his request and
        arising out of or relating to this
                                                                claimed the money was a capital contribution for which
        Agreement in any other court. (Emphasis
                                                                Richey would receive preferred equity units. Richey has
        added)
                                                                never been repaid the $1 million.
                                                                      In connection with the acquisition, Nighthawk 1*"'51
                                                                 opened a controlled-disbursement account so Richey Oil
                                                                 could access Nighthawk's revolving line of credit. As
            The Stock Purchase Agreement was executed            part of that process, Richey and Fisher executed a
        between Richey, as the seller, and NOSROC,               Deposit Account Signature Card at Bank of America that
        INC., as the purchaser. An affidavit executed by         gave Richey check signing authority. In May and June
        Fisher explains that NOSROC, INC. was "a                 2009, Fisher authorized Richey to pay Richey Oil
        corporation ["'"'3] formed for tax reasons, which        vendors from the account. However, when Richey did so,
        then immediately conveyed the stock to                   Bank of America rejected several of the checks for
        Nighthawk pursuant to an agreement between the           insufficient funds in the account. According to Richey,
        transaction parties."                                    Fisher told some payees of the rejected checks that
                                                                 Richey created the problem. Several payees referred their
      In the Goodwill Agreement, Richey sold his
                                                                 returned checks to collection agencies, attorneys, and
 goodwill interest to Nighthawk. That interest was defined
                                                                 authorities, who sent demand letters threatening civil and
 as his "right, title and interest in and to all of [Richey's]
                                                                 criminal prosecution. Shortly thereafter, Nighthawk and
 knowledge, experience and rights relating to the
                                                                 Richey Oil filed for bankruptcy.
 Business, and [Richey's] personal relationships and
 experience with the customers of the Business and                    Richey soon sued Fisher and Boudreaux in Wise
 further including the trade name 'Richey' to the extent         County where Richey resided. He sued both of them for
 and as used in conjunction with the Business." The              breach of fiduciary duty, common law fraud, statutory
 Goodwill Agreement provided that Richey would receive           fraud, and violations of the Texas Securities Act. He sued
 $7 million in cash, a $6.5 million promissory note, and         Fisher separately for defamation, common law fraud,
 $6.5 million in Nighthawk limited partnership interest          negligent misrepresentation, and interference with
 units. The Goodwill Agreement contained the same                prospective [*527] business relations related to the
 venue selection clause as the Stock Purchase Agreement.         statements Fisher allegedly made to him about
                                                                 availability ("'*6] of money in the Richey Oil account
      The $6.5 million promissory note (the Note) was
                                                                 and communications made to third parties regarding the
 signed by Fisher as president of Nighthawk. It provided
                                                                 returned checks. He sued Boudreaux separately for
 that "[Nighthawk] ... irrevocably agrees that any legal
                                                                 aiding and abetting Fisher's breaches of fiduciary duty,
 proceedings in respect of this note ... or other writing
                                                                 acts offraud, and violations of the Texas Securities Act.
 relating hereto shall be brought in the district courts of
 Tarrant County, Texas, or the United States District                 Fisher and Boudreaux responded by moving the trial
 Court for the Northern District of Texas."                      court to transfer venue to Tarrant County or dismiss the
                                                                 suit pursuant to the mandatory venue selection clauses in
      A ["'*41 month after Nighthawk purchased Richey
                                                                 the Stock Purchase Agreement and the Goodwill
 Oil, Nighthawk made a $20 million "special distribution"
                                                                 Agreement. They also argued that Richey lacked
 to its partners. The distribution was contemplated in the
                                                                 standing to recover damages to his reputation or goodwill
 Goodwill Agreement, which provided: "[I]t has been
                                                                 because he had conveyed those rights to Nighthawk in
 represented to [Richey] that a distribution to the owners
                                                                 the Goodwill Agreement and many of his other claims
 or holders of all units of [Nighthawk] is anticipated to be
                                                                 belonged to Nighthawk and could only be brought by the
 made contemporaneously with or subsequent to the
                                                                 Nighthawk bankruptcy trustee.
 Closing and [Richey] shall participate in such
 distribution on a pro rata basis."                                   The trial court denied Fisher's and Boudreaux's
                                                                 motions and pleas to the jurisdiction. They then sought,
      Six months later, Richey paid $1 million to
                                                                 but were denied, mandamus relief from the court of
 Nighthawk at Fisher's request. According to Richey,
                                                                 appeals. 433 SW3d 574, 2012 Tex. App. LEXIS 890
 Fisher related that he was seeking similar amounts from
                                                                 (Tex. App.--Fort Worth 2012, orig. proceeding). In this
 all the limited partners, Nighthawk would treat the
                                                                 Court Fisher and Boudreaux (collectively, Relators)
 money as loans, and in six months the loans plus ten




668
                                                                                                                        Page 3
                                        433 S.WJd 523, *; 2014 Tex. LEXIS 379, **;
                                                       57 Tex. Sup. J. 504
 argue that Richey lacks standing because his claims
                                                                         Relators also claim that Richey does not have
 actuaiiy belong to Richey Oil or Nighthawk and must be
                                                                   standing to bring defamation claims based on the bank's
 brought by the bankruptcy trustee; some of Ric~ey's
                                                                   refusal to honor Richey Oil checks. They posit that only
 [**71 claims seek recovery of debts owe~ to him. by
                                                                   Richey Oil has standing to bring those claims, and since
 Nighthawk and must be filed as claims agamst
                                                                   Richey is not the owner of Richey Oil, he cannot bring
 Nighthawk in bankruptcy court; and the trial court
                                                                   the claims on the company's behalf. See Neely v. Wilson,
 abused its discretion by failing to enforce the mandatory
                                                                   4I8 S.W.3d 52, 72 (Tex. 20I3) (noting that a corporate
 venue agreement under the major transaction statute,
                                                                   entity may maintain a suit for libel). But Richey's
 Texas Civil Practice and Remedies Code § 15.020. We
                                                                   defamation claims are that Fisher made defamatory
 will address the contentions in turn, beginning with any
                                                                   statements about Richey personally by telling payees of
 challenging jurisdiction. See Rusk State Hasp. v. Black,
                                                                   the returned checks that Richey caused the insufficient
 392 S. W. 3d 88, 95 (Tex. 20I 2) (noting that if a court does
                                                                   funds problems. Richey claimed those false statements
 not have jurisdiction, its opinion addressing any issues
                                                                   subjected him to criminal and civil prosecution, financial
 other than jurisdiction is advisory).
                                                                   loss, and injury to his personal reputation. Thus, he
                                                                   alleged injury personal to himself and has standing to
 II. The Standing Challenge
                                                                   bring the claims.
      Relators argue that Richey's claims regarding
 mismanagement of Nighthawk's financial affairs belong             III. Claims Against Nighthawk
 to Nighthawk and Richey does not have standing to
                                                                         Relators next assert that the trial court abused its
 assert them because the bankruptcy trustee must bring
                                                                   discretion in refusing to dismiss for lack of subject matter
 the claims on Nighthawk's behalf so as to preserve assets
                                                                   jurisdiction because Richey's claims for deferred
 for the benefit of all partners. Richey counters that
                                                                    consideration and the unpaid $1 million loan are claims
 mandamus review is not available on the issue of
                                                                   for a debt owed by Nighthawk, they must [**101 be filed
 standing because Relators cannot show they lack an
                                                                   against Nighthawk in bankruptcy court. But the trial
 adequate remedy by appeal, but even if mandamus
                                                                   court does not lack jurisdiction over Richey's claims
 review is available, he has standing because he suffered
                                                                    against Relators. Whether those claims should have been
 personal damages unique to him.
                                                                    brought against another party (Nighthawk) is not a
      Relators rely on Hall v. Douglas, 380 S. W. 3d 860,          question of jurisdiction requiring dismissal, but is a
 873 (Tex. App.--Dallas 20I2, no pet.), (**81 in which             question of liability. Relators did not ~rgue in ~he trial
 the court of appeals noted that "[a) limited partner does          court that they were the incorrect parties for Richey to
 not have standing to sue for injuries to the partnership           bring the claims against. Relators have not shown
 that merely diminish the value of that partner's interest."        themselves entitled to mandamus relief on this ground.
 But as that court recognized, a partner who is "personally
                                                                         Relators also argue that "proceeding with the debt
 aggrieved" may bring claims for those injuries he
                                                                    claims against Nighthawk in the Wise County suit
 suffered directly. Id at 872.
                                                                    violates the automatic stay in bankruptcy." But
      Richey's pleadings asserted that he made a $1                 Nighthawk is not a defendant in the Wise County suit
 million payment to Nighthawk, the other limited partners           and the automatic bankruptcy stay does not extend to
 failed to make similar payments, and he suffered                   non-debtors. Reliant Energy Servs., Inc. v. Enron
 damages including "loss of earning capacity, lost profits,         Canada Corp., 349 F. 3d 8I6, 825 (5th Cir. 2003) (noting
 loss of income, damage to credit reputation, lost                 that by its terms, the automatic stay applies only to the
 investments," and "other losses." He also alleged that he          debtor); Texas-Ohio Gas, Inc. v. Mecom, 28 S. W..3d I 29,
 sustained injury to his character and suffered mental              I44 (Tex. App.--Texarkana 2000, no pet.) (holdmg that
 anguish.                                                           the bankruptcy stay does not extend "to separate legal
                                                                    entities such as corporate affiliates, partners in debtor
      When a plea to the jurisdiction is based on the
                                                                    partnerships or to codefendants in pending litigation."
 pleadings, the pleadings are to be construed liberally in
                                                                    (quoting [**111 Patton v. Bearden, 8 F. 3d 343, 349 (6th
 favor of the plaintiff. Tex. Dep't of Parks & Wildlife v.
                                                                    Cir. I993)); see also In re Pegasus Funds, 345 S.W.3d
 Miranda, I 33 S. W.3d 2I 7, 226 (Tex. 2004). Richey's
                                                                    I75, I76 (Tex. App.--Dallas 201J, orig. proceeding).
 allegations do not affirmatively negate his hav.ing be~n           Relators argue that the bankruptcy stay should extend to
 "personally aggrieved."        (*5281     Thus, given his
                                                                    them because the stay applies to a non-debtor "when
 allegations, we need not decide whether mandamus
                                                                    there is such identity between the debtor and the third-
 review is available to Relators as to Richey's standing to
                                                                    party defendant that the debtor may be said to be the real
 assert claims based on his $1 million payment because
                                                                    party defendant and that a judgment against the thi.rd-
 even if it is, the record [**91 before us does not                 party defendant will in effect be a judgment or findmg
 demonstrate that Relators are entitled to mandamus
                                                                    against the debtor." See A.H Robins Co. v. Piccinin, 788
 relief.




669
                                                                                                                   Page 4
                                        433 S.WJd 523, *; 2014 Tex. LEXIS 379, **;
                                                   57 Tex. Sup.J. 504
 F.2d 994, 999 (4th Cir. I986). Relators have not shown        agreement that relates to Richey's claims is the
 that this is the situation here.                              Partnership Agreement which has no forum or venue
                                                               1**13) selection clause; (3) the contractual venue
 IV. The Venue Selection Clauses                               selection clause is permissive, not mandatory; and (4)
                                                               venue is mandatory in Wise County under the statutory
      We next consider whether the trial court abused its
                                                               provision requiring a suit for libel or slander to be
 discretion by refusing to transfer Richey's claims
                                                               brought in the county where the plaintiff resided at the
 pursuant to venue selection clauses in the agreements
                                                               time of the accrual of the cause of action. See id. §
 under Texas Civil Practice and Remedies Code§ I5.020.
                                                               I5.0I7. We address the arguments in turn.
 Mandamus relief is specifically authorized to enforce a
 statutory mandatory 1*529) venue provision. TEX. Crv.
                                                               B. Does Section 15.020 Apply?
 PRAC. & REM. CODE§ 15.0642.
                                                                    The parties do not dispute that the Richey Oil
 A. Section 15.020--Major Transactions                         acquisition, which included the sale of Richey's
                                                               goodwill, constitutes a "major transaction" as defined by
     Relators assert that by its plain language --
                                                               section I5.020. Richey urges, however, that section
 "Notwithstanding any other provisions of this title"--
                                                               I5. 020 does not apply because his claims against
 Texas Civil Practice and Remedies Code § 15.020
                                                               Relators are not claims "arising from" the purchase of
 overrides other venue (**12) provisions and required the
                                                               Richey Oil; rather, he asserts, his claims arise from the
 trial court to enforce the venue agreements. Section
                                                               operation or management of Nighthawk. We have not
 I5.020 applies to a "major transaction," which is defined
                                                               previously addressed when an action "arises from" a
 as a transaction evidenced by a written agreement and
                                                               major transaction under section 15.020, but we have
 which involves $1 million or more:
                                                               previously addressed similar issues as to forum selection
                                                               agreements.
            (c) Notwithstanding any other provision
         of this title, an action arising from a major              In In re International Profit Assocs., 274 S. W.3d 672
         transaction may not be brought in a                   (Tex. 2009) (per curiam), we analyzed whether a forum
         county if:                                            selection clause in a contract applied to tort claims
                                                               between the contracting parties. In determining whether
                   (l) the party bringing the                  the (**14( claims were within the scope of the clauses,
                 action has agreed in                          we called for a "common-sense" examination of the
                 writing that an action                        substance of the claims made to determine if they "arise"
                 arising from the transaction                  from the contract. ld. at 677. We explained that a court
                 may not be brought in that                    should consider whether a claimant seeks a direct benefit
                 county, and the action may                    from a contract and whether the contract or some other
                 be brought in another                         general legal obligation establishes the duty at issue. Id.
                 county of this state or in                    We concluded that no matter how the claimant
                 another jurisdiction; or                      characterized or pleaded the claims, the tort claims in
                                                               that case--including fraud and negligent
                      (2) the party bringing
                                                               misrepresentation--"arise from the contractual
                 the action has agreed in
                                                               relationship between the parties, not from obligations
                 writing that an action
                                                               imposed by law." ld. at 678.
                 arising from the transaction
                 must be brought in another                         In Lisa Laser, 3/0 S. W. 3d 880, we applied the same
                 county of this state or in                    type of analysis to determine the scope of a forum
                 another jurisdiction, and                     selection clause (*530( and whether it applied to the
                 the action may be brought                     plaintiffs' contract claims. In that case, HealthTronics had
                 in that other county, under                   a contract with Lisa Laser for exclusive distribution
                 this section or otherwise,                    rights of certain medical devices. Id. at 882. The
                 or in that other jurisdiction.                agreement also provided HealthTronics with rights of
                                                               first refusal to distribute new products if certain
                                                               requirements were met. Id. An exhibit to the agreement
                                                               provided that the terms and conditions that followed,
                                                               including a California (**15) forum selection clause that
 Id. § I5.020(c). Richey argues that section 15.020 and        applied to "any dispute arising out of this agreement,"
 the venue selection clause in the Goodwill Agreement do       applied to sales by Lisa Laser to HealthTronics. ld.
 not apply for the following reasons: (1) his tort claims do   HealthTronics sued Lisa Laser in Travis County for
 not "arise from" the purchase of Richey Oil; (2) the only     breach of contract, alleging that Lisa Laser breached its




670
                                ·'-".
                                                                                                                         Page 5
                                         433 S.W.3d 523, *; 2014 Tex. LEXIS 379, **;
                                                      57 Tex. Sup. J. 504
 obligation to afford HealthTronics the first right to            of claims such as breach of the duty of good faith and
 distribute new products, and for tortious interference with      fair dealing to determine whether a forum selection
 a contract. /d. Lisa Laser sought mandamus relief after          clause applied). Richey's complaint that he lost the
 the trial court denied its motion to dismiss based on the        benefit [*5311 of his bargain depends on the Goodwill
 forum selection clause. Id at 882-83. HealthTronics              Agreement and Nighthawk's agreement in it to pay part
 argued that the forum selection clause only applied to           of the purchase price by means of the $6.5 million note.
 part of the contract, that is, sales transactions between it     See Lisa Laser, 3 I 0 S. W. 3d at 886 (holding that a forum
 and Lisa Laser. Jd at 884. Applying the reasoning from           selection clause applied to a claim that would have no
 International Profit Associates, we concluded that Lisa          basis but for the agreement containing [**181 the
 Laser's obligation, if any, to inform HealthTronics of           clause). Because Richey's claims substantively arise from
 new products and to offer it a right of first refusal to         commitments in the Goodwill Agreement, we disagree
 distribute those products "only arises from the                  with his claim that the only agreement that relates to his
 Distribution Agreement." Id at 884-86. The obligations           claims is the Partnership Agreement.
 were not imposed under general law, they would not
                                                                        Richey asserts that his claims actually arise from
 exist but for the agreement, and therefore they arose out
                                                                  Relators' post-acquisition conduct and, therefore, do not
 of the agreement. Id at 886. We concluded that the
                                                                  "arise from or relate to the Note." Rather, he argues that
 forum selection clause itself applied more broadly than to
                                                                  the Note is merely a source of reference for measuring
 mere sales [**16J transactions because it applied to "any
                                                                  his damages. He also argues that because he did not sign
 dispute arising out of" the agreement and the trial court
                                                                  the Note, he is not bound by the venue selection clause in
 erred in refusing to enforce the forum selection clause.
                                                                  it. We disagree that these assertions mean section I 5. 020
 Id at 887.
                                                                  is inapplicable. First, section I 5. 020 does not require that
      Turning to the case at hand, we see no reason to            an action arise out of a specific agreement. Rather, it
 deviate from the type of analysis we used in                     applies to an action "arising from a major transaction" if
 International Profit Associates and Lisa Laser. Similarly        the party bringing the action has agreed in writing that
 to our method of analysis in those cases, we will use a          the action will be brought in a certain jurisdiction. TEX
 common-sense examination of the substance of the                 CJV. PRAC. & REM. CODE§ 15.020(a) {emphasis added).
 claims to determine whether the statute applies. See Int'l       And as set out above, Richey signed the Goodwill
 Profit Assocs., 274 S. W.3d at 677.                              Agreement specifying that claims arising out of or
                                                                  relating to it would be brought in Tarrant County.
      Richey alleged in his live pleadings that "[a]
                                                                  Richey's claim based on the unpaid note arises out of that
 substantial part of the acquisition was deferred
                                                                  major transaction regardless of whether [**19] Richey
 consideration in the form of a $6,500,000 Promissory
                                                                  signed the Note or whether his claim "arises" specifically
 Note." He further alleged that he suffered substantial
                                                                  out of the Note.
 damages caused by Relators' authorization of the $20
 million special distribution and that "[t]he effect of the             Second, we disagree with Richey's claim that he
 distribution was to severely impair [Nighthawk's]                merely references the Note to measure his damages.
 ongoing operations and ultimately to render [Nighthawk]          Richey cites Carr v. Main Carr Development, LLC. 337
 insolvent and incapable of continuing its business and           S. W. 3d 489, 498 (Tex. App. --Dallas 20I I, pet. denied), in
 affairs." Richey brought a claim for breach of fiduciary         which the court held that a non-signatory cannot be
 duty related to that $20 million distribution of Nighthawk       compelled to arbitrate when his claims merely "touch
 assets. He alleged that his damages included "benefit of         matters" covered by a contract containing an arbitration
 the bargain losses." And in a response [**17] to                 clause, yet the claims do not actually rely on the
 Relators' supplemental motion to dismiss in the trial            contractual terms. Id. In that case the court of appeals
 court, he explained that he sought damages for "the loss         explained that claims must be brought on a contract if
 ofthe promissory note issued [to] him individually."             liability must be determined by reference to the contract,
                                                                  and the determination of whether a party seeks the
      Applying a common-sense analysis, we conclude
                                                                  benefit of a contract turns on the substance of the claim.
 that Richey in substance is seeking to recover the $6.5
                                                                  Id. (citing In re Weekley Homes, L.P., /80 S.W.3d I27,
 million owed to him under the Note and for actions
                                                                   13I-32 (Tex. 2005)).
 flowing directly from the acquisition and actions
 anticipated to flow from it.                                           Here, Richey's claims do more than "touch matters"
                                                                  included in the Goodwill Agreement and the Note.
      First, the Note was consideration for his transfer of
                                                                  Liability for failure to pay him on the Note must be
 goodwill and was specifically provided for under the
                                                                  determined by reference to those agreements. See id. And
 Goodwill Agreement. His claim for Nighthawk's failure
                                                                  when an injury is to the subject matter of a contract, the
 to pay the Note, regardless of whether it is labeled as a
                                                                  action is ordinarily "on the contract." Sw. Bell Tel. Co. v.
 breach of fiduciary duty claim or otherwise, arises from
                                                                  DeLanney, 809 S.W.2d 493, 494 (Tex /99I) [**20J
 that major transaction. See id. (considering the substance




671
                                                                                                                   Page 6
                                      433 S.W.3d 523, *; 2014 Tex. LEXIS 379, **;
                                                  57 Tex. Sup. J. 504
 (emphasis added).                                            jurisdiction and venue in the named forum.").
                                                                    The provision here providing that the parties
 C. Is the Venue Selection Clause Mandatory?
                                                               irrevocably submit to the non-exclusive jurisdiction of
      Richey next argues that even assuming his claims         the courts in Tarrant County is a consent-to-jurisdiction
 arise from Nighthawk's purchase of Richey Oil, section        clause. But the parties not only submitted themselves to
 15. 020 is inapplicable because he did not agree in writing   jurisdiction of the Tarrant County courts, each party also
 that an action arising from the transaction "must" be         "irrevocably ... agree[d] not to bring any proceeding
 brought in Tarrant County or "may not be brought" in          arising out of or relating to this Agreement in any other
 Wise County. He claims that the acquisition documents         court." Our primary goal in construing this contractual
 and the Note include permissive, not mandatory venue          language is to determine the parties' intent as reflected by
 selection clauses. He references the Goodwill                 the language they used. El Paso Field Servs., L.P. v.
 Agreement's provisions that "any proceeding arising out       MastecN. Am., Inc., 389S.W.3d802, 805 (rex. 2012).
 of or relating to this Agreement may be brought in the        The contract reflects intent that the parties submit to the
 courts of the State of Texas, Tarrant County, or if it has    jurisdiction of the state or I*"'231 federal courts in
 or can acquire jurisdiction, in the United States District    Tarrant County and that they will not file suit "arising
 Court for the Northern District of Texas" and that the        out of or relating to this Agreement" anywhere else. The
 parties "submit[] to the non-exclusive jurisdiction of each   requirement that if the parties file suit it will be in
 such court," and "the proceeding (*532) may be heard          Tarrant County is not diluted by their agreement to
 and determined in any such court." (Emphasis added).          submit to jurisdiction there, and we disagree with
 Richey argues that this permissive language controls over     Richey's position that construing the venue selection
 the mandatory language providing that each of the parties     clause as mandatory would render his agreement to
 "agrees not to bring any proceeding arising out of or         submit to personal jurisdiction in Tarrant County
 relating to this Agreement in any other court." He asserts    meaningless. Simply put, Richey clearly agreed in the
 that finding the clause mandatory would render 1"'*21)        Goodwill Agreement that an action arising from that
 all of the permissive language meaningless. Relators          transaction must be brought in Tarrant County. See TEX.
 counter that the permissive language applies to consent       C!V. PRAC. & REM. CODE§ 15. 020(c).
 to jurisdiction, but the mandatory language applies to
                                                                    Richey also asserts that when a venue provision such
 require venue. We agree with Relators.
                                                               as the one involved here includes the term "non-
      The beginning of the jurisdiction clause at issue here   exclusive," it is not mandatory, even if the provision
 provides that "[a]ny proceeding arising out of or relating    includes other language reflecting that it is mandatory.
 to this Agreement may be brought in the courts of the         Richey cites two cases in support of his assertion that use
 State of Texas, Tarrant County . . . and each of the          of the phrase "non-exclusive [*5331 jurisdiction" makes
 parties irrevocably submits to the non-exclusive              a venue selection clause only permissive. See Sauder v.
 jurisdiction of each such court in any such proceeding."      Rayman, 800 So. 2d 355, 359 (Fla. Dist. Ct. App. 2001);
 Objections to personal jurisdiction may be waived, so a       W. Ref Yorktown, Inc. v. BP Corp. N. Am. inc., 618 F.
 litigant may consent to the personal jurisdiction of a        Supp. 2d 513, 520-21 (E.D. Va. 2009). But in neither of
 court through a variety of legal arrangements. Burger         those cases did        ("""241 the courts' holdings rely
 King Corp. v. Rudzewicz, 471 US. 462, 472 n.14, 105 S.        exclusively on the phrase "non-exclusive." In Sauder, the
 Ct. 2174, 85 L. Ed. 2d 528 (1985). For example, a             court held that the phrase "non-exclusive jurisdiction" in
 contractual "consent-to-jurisdiction clause" subjects a       a forum selection clause was permissive while the phrase
 party to personal jurisdiction, making an analysis of that    "all actions ... shall be litigated" in the same clause was
 party's contacts with the forum for personal jurisdiction     mandatory. 800 So. 2d at 359. Because the entire clause
 purposes unnecessary. RSR Corp. v. Siegmund, 309              did not foreclose multiple interpretations, the court
 S. W.3d 686, 704 (rex. App.--Dallas 2010, no pet.)            concluded the trial court's order finding the provision
 (concluding a contract provision that claims "may be          permissive was not clearly erroneous. Jd. And in Western
 heard" in Dallas courts was a "consent-to-jurisdiction"       Refining Yorktown, the forum selection clause did not
 clause and the trial court erred by granting the              contain the phrase non-exclusive jurisdiction. Rather, the
 defendant's 1**22) special appearance); see Ramsay v.         clause provided that an action to enforce the contract
 Tex. Trading Co., 254 S. W3d 620, 629 (rex. App.--            "shall" be brought in "the federal or state courts located
 Texarkana 2008, pet. denied) (explaining that a               in Cook County in the State of Illinois on a non-
 permissive forum selection clause is one under which the      exclusive basis." 618 F. Supp. 2d at 519. The phrase
 parties consent to the jurisdiction of a particular forum     "non-exclusive basis," the court held, meant that filing
 but do not require suit to be filed there); see also          suit in the courts in Cook County was not mandatory. ld.
 Granados Quinones v. Swiss Bank Corp. (Overseas},             at 523.
 SA., 509 So. 2d 273, 274 (Fla. 1987) ("Permissive
                                                                    We do not consider these cases determinative.
 clauses constitute nothing more than a consent to




672
                                                                                                                    Page 7
                                       433 S.WJd 523, "'; 2014 Tex. LEXIS 379, "'*;
                                                  57 Tex. Sup. J. 504
 Rather, we conclude that where the phrase "non-               This indicates that the Legislature intended for it to
 exclusive jurisdiction" is in a venue selection clause that   control over other mandatory venue provisions. See
 also includes language reflecting intent that the venue       Moline! v. Kimbrell, 356 S. W.3d 407, 413-14 (Tex. 2011)
 choice is mandatory, the non-exclusive language does          ( """27] (holding that the phrase "notwithstanding any
 not (**25] necessarily control over the mandatory             other law" indicates a legislative intent that the provision
 language. We agree with the court's decision in               prevail over conflicting law).
 Muzumdar v. Wellness International Network, Ltd., 438
                                                                    Next, Richey alternatively argues that if section
 F.3d 759, 762 (7th Cir. 2006) where the court rejected a
                                                               15.017 does not apply, venue is proper in Wise County
 party's contention that the phrase "non-exclusive
                                                               under the general venue statute because a substantial part
 jurisdiction"--which the court noted required the parties
                                                               of the events giving rise to his claim occurred there. See
 to submit to personal jurisdiction--rendered a forum
                                                               TEX. Clv. PRAC & REM CODE § 15. 002(a)(1) (providing
 selection clause permissive. There the court concluded
                                                               that a lawsuit shall be brought in various enumerated
 that it could not "find that a provision which requires
                                                               places including "in the county in which all or a
 appellants to submit to the 'non-exclusive' jurisdiction of
                                                               substantial part of the events or omissions giving rise to
 Texas courts somehow undermines a very strongly
                                                               the claim occurred"). He cites Acker v. Denton
 worded forum selection clause containing mandatory
                                                               Publishing, 937 S. W2d 111, 115 (Tex. App.--Fort Worth
 language: 'SHALL BE PROPER ONLY' or 'SHALL BE
                                                               1996, no writ) for the proposition that if a plaintiff's
 PROPER' in Dallas County, Texas." Id. Similarly, the
                                                               choice of venue is proper, it is reversible error for a trial
 phrase "non-exclusive jurisdiction" in the Goodwill
                                                               court to transfer venue even if the county of transfer
 Agreement does not control over the plainly worded
                                                               would also have been proper if chosen by the plaintiff.
 mandatory language.
                                                               But Acker did not address whether a case should be
                                                               transferred when a mandatory venue provision for a
 D. Venue in Wise County
                                                               different county was applicable. And we long ago
     Finally, Richey argues that venue in Wise County is       explained that "[i]fthe plaintiffs chosen venue rests on a
 proper even if it is not mandatory, so the trial court did    permissive venue statute and the defendant files a
 not err by denying Relators' motion to dismiss. First,        meritorious motion to transfer (*"'28) based on a
 Richey points to Texas Civil Practice and Remedies            mandatory venue provision, the trial court must grant the
 Code § 15.017 which provides that:                            motion." Wichita Cnty. v. Hart, 917 S.W2d 779, 781
                                                               (Tex. 1996) (emphasis added). The perm1sstve venue
           A suit for damages for libel, slander, or           statute does not control over the mandatory venue
        invasion of privacy shall be brought                   provision applicable in this case.
        (**26] and can only be maintained in the
        county in which the plaintiff resided at the           V. The Remainder of Richey's Claims
        time of the accrual of the cause of action,
                                                                    Having determined that Richey's claims seeking his
        or in the county in which the defendant
                                                               benefit of the bargain losses arose out of a major
        resided at the time of filing suit, or in the
                                                               transaction, we conclude that all of Richey's claims
        county of the residence of defendants, or
                                                               against Relators must be transferred to Tarrant County
        any of them, or the domicile of any
                                                               because Texas Civil Practice and Remedies Code §
        corporate defendant, at the election of the
                                                               15. 004 provides that:
        plaintiff.
                                                                         In a suit in which a plaintiff properly
                                                                      joins two or more claims or causes of
 TEX. CIV. PRAC & REM CODE§ 15.017. He asserts that
                                                                      action arising from the same transaction,
 because he resided in Wise County at the time his cause
                                                                      occurrence, or series of transactions or
 of action for defamation accrued, this mandatory
                                                                      occurrences, and one of the claims or
 provision applies.
                                                                      causes of action is governed by the
      We have already concluded that section 15.020                   mandatory venue provisions ... , the suit
 applies, mandating that Richey's actions must be brought             shall be brought in the county required by
 in Tarrant County. Venue may be proper in multiple                   the mandatory venue provision.
 counties under mandatory venue rules, and the plaintiff is
 generally afforded the right to choose venue when suit is
 filed. Wilson v. Tex. Parks & Wildlife Dep't, 886 S. W.2d     It is not necessary for us to analyze Richey's claims to
 259, 260 (Tex. 1994). But in this case, the language of       determine whether they arise from the same transaction,
 (*534) section 15.020 applies to an action arising from a     occurrence, or series of transactions: the parties
 major transaction "[ n]otwithstanding any other provision     affirmatively assert that they do.
 ofthis title." TEX. C!V. PRAC & REM CODE§ 15.020(c).




673
                                                                                                                      Page 8
                                         433 S.W.3d 523, *; 2014 Tex. LEXIS 379, "'*;
                                                      57 Tex. Sup. J. 504
   VI. Inconsistency Among Agreements                             bank account. He claimed that Fisher made defamatory
                                                                  statements to check payees about Richey's being
        Finally, Richey asserts that because Relators [*"'29)
                                                                  responsible for the checks not being able to be cashed.
   argue that this case is also governed by forum selection
                                                                  Relators do not explain how these claims arise out of the
   clauses providing that suit be brought in Chicago, New
                                                                  deposit agreement with Bank of America .
 . York, and Illinois, the inconsistency among all the
   agreements creates an ambiguity so suit should proceed              We disagree that there is any ambiguity as to which
   in Richey's choice of venue. We disagree.                      clause should apply to Richey's claims against Relators.
                                                                  Richey's claims arise out of and would not exist but for
        In order to finance the acquisition of Richey Oil,
                                                                  the acquisition agreements. The venue selection clauses
   Nighthawk entered into credit agreements with LaSalle
                                                                  in those agreements apply.
   Business Credit, L.L.C. and D.B. Zwim Special
   Opportunities Fund, L.P., which contained clauses
                                                                  VII. Conclusion
   requiring suit be brought in Chicago and New York,
   respectively. Richey acknowledges he was not a party to             The trial court abused its discretion by failing to
   either of those agreements. Richey also signed a               enforce the mandatory venue selection clauses in the
   Subordination Agreement in which he agreed that the            Stock Purchase Agreement and Goodwill Agreement.
   $6.5 million note was subordinate to the security interests    We conditionally grant relief. We direct the trial court to
   of LaSalle Business Credit and D.B. Zwim. The                  vacate its order denying Relators' motion to transfer
   Subordination Agreement provided that any litigation in        venue and to grant the motion. The writ will only issue if
   connection with that agreement 1"'535) shall be venued         the trial court fails to comply with our directive.
   in New York. But Relators were not parties to that
                                                                       Phil Johnson
   agreement.
                                                                       Justice
        Relators also argue that a deposit agreement with
   Bank of America, requiring suits regarding the Richey               OPINION DELIVERED: February 28,2014
   Oilfield account be brought in Illinois, applies to
   Richey's claims against them. But Richey did not bring
   claims against Relators regarding the Richey Oil [*"'30)




674
                                                 PLAINTIFFS
                                                   EXHIBIT
                                                       'l.




 PENTEX FOUNDATION
      Plaintiff
 Vs.
              Vef?JJ
 KENNETH Wit¥ GIBBS
 CANDACE GIBBS WALTON
 ROWARD KIRK GffiBS
     Defendants

                                      ORIGINAL PETITION

        COMES NOW, PENTEX FOUNDATION, Plaintiff, herein also "PENTEX", through its

 attorney John Skotnik, and files this suit for specific performance of a contract, and Tortious

 Interference. with that Contract, against Kenneth Vern Gibbs, Candace Gibbs Walton, and

 Howard Kirk Gibbs,; and, would show the honorable court as follows:

                                 DISCOVERY CONTROL PLAN

        Plaintiff intends that discovery be conducted under Discovery Level 2.

                                              PARTIES

 1.     PENTEX FOUNDATION is a not for profit private foundation formed and operated

 under the laws of the Republic of Panama, Central America. PENTEX does not have an office

 within the United States, but will accept service for this cause only through their attorney, John

 Skotnik, Bonham, Texas.

 2.      Kenneth Vern Gibbs is a resident of Texas whose address is 4212 Wheeler St., Ft. Worth,

 Texas 76117, where service may be made.

 3.      Candace Gibbs Walton is a resident of Texas, whose address is 500 Logan Drive in Azle,

 Texas 76020, where service may be made.




                                                   l
675
                        '-'




  4.      Howard Kirk Gibbs is a resident of Texas whose address is 4360 Western Center Blvd.

  #205, Ft. Worth, Texas 76137 where service may be made.

                                   JURISDICTION AND VENUE

  5.      The subject matter in controversy is within the jurisdictional limits of this Court.

  6.      The Court has jurisdiction over the parties because the Defendants are all Texas residents.

  7.      Venue is proper in Fannin County, Texas per Texas Civil Practice artd Remedies Code§

  15.035 (a), as the Defendants herein agreed in writing that:

       a. The contract was performable only in Fannin County, Texas; AND

       b. Any dispute would be resolved in the courts of Fannin County, Texas.

  8.      Furthermore, because venue is proper as to one Defendant, venue for this action with

  respect to all Defendants is proper under§ 15.05 Texas Civil Practice and Remedies Code.

                                         RELEVANT FACTS

  9.      On or about the lOth day of May, 2005, an agreement entitled crcontract for Sale of

  Land, Mineral Rights and Royalties, and all other Assets or Monies Received from the Estate

  of Bert Hughes Gibbs, Kathryn G. Gibbs, and/or the Mary L Houseworth Trust(s;n,

  hereinafter "Contract", was entered into between Albert Lynn Barcroft ("Barcroft"JJ Kenneth

  Vern Gibbs ["Ken"], Candace Gibbs Walton ["Candy"], and Howard Kirk Gibbs ["Howard").

  The Contract was memorialized; executed and entered into the public record of Denton County,

  Texas, on or about May 24, 2005 as docilment number 2005-61443. A copy of the Contract

  (consisting of 9 pages) is attached hereto as Exhibit "A", and is incorporated by reference for

  herein for all purposes.




                                                     2
676
      37.      Plaintiff has had over a million dollars of money rightfully due Plaintiff taken by Ken,

      Candy and Howard to pay the attorney fees that were due to be paid only by Ken, Candy and·

      Howard under written agreement, i.e. the Contract here.

      38.      In addition, under the terms of the Contract, Plaintiff was to receive 30% of all proceeds

      from any lawsuit involving Ken, Candy and Howard. At the time the Contract was agreed to and

      executed, there was an Abstract of Judgment filed in Denton County [Document Number 2008-

      38029] against Ken, Candy and Howard in the amount of$911,252.87 plus $149,546.34 in

      interest, in favor of Kip H. Gibbs as NEXT FRIEND FOR Kathryn Houseworth Gibbs.

            a. As a result of Plaintiff's efforts, that judgment was retired.

            b. It is therefore proceeds from a lawsuit, and Plaintiff is entitled to its 30% share, equaling

               $318,239.76.

                                          SPECIFIC PERFORMANCE

      39.      Plaintiff has a right to performance under the Contract. Plaintiff has honored every

      consideration placed on it by the Contract; and, now, Plaintiff has a right to the consideration

      promised it.

      40.      Plaintiff would ask the court to order that the provisions of the Contract be fully enforced

      without delay; and, that the proper gas companies be notified of the action.

      41.       Plaintiffs only offense was in utilizing a provision within the Contract to withdraw its

      money and assets from a situation in which Plaintiff has been taken advantage of and stolen from

      since the outset.

      42.      Plaintiff asks the court to grant specific performance under the Contract without delay.

                                          CONDITIONS PRECEDENT

      43.      Plaintiff avers that all conditions precedent have occurred prior to flling of this suit.




                                                           7
677
      provided by Chapter 38 of the Texas Civil Practice and Remedies Code and Section 37.009 of

      the Texas Civil Practice and Remedies Code; amongst others.

                                     ALTERNATIVE ALLEGATIONS

      49.    Pursuant to Rul~s 47 and 48, Texas Rules of Civil Procedure and the rule.s of pleadings,

      allegations in this petition are made in the alternative..

                         PLAINTIFF HEREBY DEMANDS TRIAL BY JURY!!

                                                   PRAYER

             WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that the Defendants be

      cited to appear and answer herein, and that upon a fmal hearing of the cause, judgment be

      entered by this Court for Plaintiff and against the Defendants for the following:

             A.      All actual damages; but, in any case, no less than one million dollars

             [$1,000,000.00];

             B.      Restitution in the exact amount that has been unjustly taken from Plaintiff by

              defendants and used to pay Defendant's legal fees;

              C.     Judgment against Defendant's for $318,239.76 plus interest as Plaintiffs share of

              the proceeds from the Abstract of Judgment referenced herein;

             D.      Declaratory judgment at the earliest possible time to determine the proper

              ownership of the mineral interest put in dispute at the oil and gas company level by

              baseless letters from the Defendants;

             E.      Specific Performance

             F.      Grant any other relief to which plaintiff has shown itself entitled both at law and

             in equity, whether pled or unpled.




                                                         9
678
      ectfully submitted,
                        (};}·       --· £7
                    ,/~,.       /tu/;:2.:
 Joh 1Skotnik, sbn 18475150
 P.f);:Box 727
 B~ham, Texas 75418
  (903)640M4300   * FAX 640A344
 Attorney for Plaintiff,
        PENTEX FOUNDATION




                                             10
679
                                                                                            Page 1 of 1


Scott Smith

From:        <dannyrunger@reagan.com>
To:          "Albert Barcroft" <albertbarcroft@gmail.com>
Cc:          "Scott Smith" <smithlaw@airmail.net>; "Joshua Ba" <joshua.unger@hotmail.com>
Sent:        Thursday, October 02, 2014 2:23PM
Attach:      Computation of Damages. pdf
Subject:     Re: Order
Scott and AI:

Each accounting is done on an annual basis. The computation of damages (see
attached) summarizes all of the distributions from 2009 through 2013. In the upper 1/4 of the
2nd page under the heading of Total Distribution 2008 through 2013, It list the Total
distributions from each year showing a combined total through 2013 of $4,993,111.

If this doesn't work let me know.

Danny


-----Original Message-----
From: "Albert Barcroft" <albertbarcroft@gmail.com>
Sent: Thursday, October 2, 2014 1:16pm
To: "Scott Smith" <smithlaw@airmail.net>, "Danny Runger" <dannyrunger@reagan.com>,
"Joshua Ba" <joshua.unger@hotmail.com>
Subject: Re: Order

I believe we should file the attached motion to reconsider
immediately with a view towards mandamus. We need to
attach a copy of the GWB accounting (Danny will send you,
and a copy of the case. I think she might reverse on her own
if she fears mandamus, because I think mandamus would lie.
On Thu, Oct 2, 2014 at 11:37 AM, Scott Smith <smithlaw@airmail.net> wrote:
 She didn't make any express findings. I don't think we need the actual order if we are just
 planning to file a motion to reconsider.

    ----- Original Message -----
    From: dannyrunger@reaqan.com
    To: Scott Smith ; Albert Barcroft
    Sent: Thursday, October 02, 2014 11:51 AM
    Subject: Re: Order
    Scott:

    Methinks that a copy of the order is necessary to find the grounds upon which this cause
    was transferred. Did it relate to the Defendants residing iri Tartant'County or did it relate to
    not being able to have a fair trial in Fannin County? Or did she just find that the 'major
    transaction' provision enforcing 'mandatory venue' was not required?

    Danny

  680
                                                                                       p···.
                                                               _FfLEO FOR RECORD       ~;·
                                     SCOTT SMITH             : .J\M~N COUNTY TEXAS
                                ATTORNEY AND COUNSELOR AT LAW ?O
                                                               L   IGOCT -9 AHIO: II
 E-MAIL: smithlaw@airmail.net                                       .IMNGVI~ ~mTT STREET
 FACSIMILE: (903) 870-1446                                         . iiSTRICTt.l . Box 354
 TELEPHONE: (903) 868-8686                                           SHF;RMAN, n 5o~o354
                                                               IY    I
                                                                      4 ·.
                                                                      1        OEPUT'1-·V
                                      October 8, 2014

 Hon. Laurine Blake
 Judge, 336th Judicial District Court
 Fannin County Courthouse
 101 East Sam Rayburn Dr., Ste. 201
 Bonham, Texas 75418

          RE: Pentex Foundation v. Kenneth Vern Gibbs, et al.; Cause Number
              CV-14-41665 in the 336th Judicial District Court ofFannin County,
              Texas.

 Dear Judge Blake:

      On October 3, 2014, we filed a Motion to Reconsider Order to Transfer
 Venue. The last page was not meant to be part of the motion. It is a confidential
 document, and its disclosure was inadvertent and accidental. I have so advised
 counsel. I ask that the last page be disregarded.

      A copy of this letter and the enclosed is being forward to Ms. Lee and Mr.
 Gibbs. I thank you for your attention to this matter.

                                                      truly,



TSS/bhs




681
     1
                                                                                                                                                                            P.
                                            'W'                                                                                         ~
                                  Communi cat ion Result Report ( Oct. 8. 2014 8:28AM)                                                                                *
                                                                                                                                                                 1)
                                                                                                                                                                 2)

Date/Time: Oct. 8. 2014 8:27AM
Fi l e                                                                                                                                                                    Page
 No. Mode                            Destination                                                                              Pg (s)                        Result        Not Sent
7276 Memory TX                       918004377901                                                                             P.         2                  OK




          Reason for P.r"ror
               E. 1) Hang up      o r   1 i ne     fa i 1                                              E. 2)        Busy
               E. 3)   No   answer                                                                     E. 4)        No      facsimile                    connect ion
               E. 5)   Exceeded      max.    E-mail             siz:e




                                            SCOITSM.ITH
                                            ATIORNEY &COUNSELORATLAW


                                            120 South Crockett Street
                                            P.O.Box3S4
                                            Sloman, Tex., 75091-0354
                                            e-mail: smithlaw@aitmail.net
                                            Facsimile (903) 870-1446
                                            Telephone (90::1) 868-8686

                                                                                                              FACSIMILE COYER SHEET

                                            TO:             CHRISTY LEE 800-437-7901
                                            FROM:           SCOTI SMITH

                                            DATE:           OctoberS, 2014

                                            NUMBER OF PAGES (Including this oover page):                        2


                                               IF 1HBRB IS DIFFICULTY WITH TillS TRANSMISSION, PLEASE
                                            CONfACf O[NAAT (903) 868-8686 IMMEDIA'lliLY.

                                            MESSAGE:




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         682
                                                                                        Page 1 of 1


Scott Smith

From:      "Scott Smith" <smithlaw@airrnail.net>
To:        "Christy Lee" <clee@christyleelaw.com>; "Howard Gibbs" <hkgibbs@gmail.com>
Sent:      Wednesday, October 08, 2014 8:27AM
Attach:    14-10-8 Judge Blake Letter.pdf
Subject:   Pentex Foundation v. Gibbs


Scott Smith
Attorney and Counselor At Law
120 South Crockett Street
P.O. Box 354
Sherman, Texas 75091-0354
Facsimile 903.870.1446
Telephone 903.868.8686




 683
                                                                                                       Page 1 of 1


Scott Smith

From:      "Scott Smith" <smithlaw@airmail.net>
To:        "Christy Lee" <clee@christyleelaw.com>; "Howard Gibbs" <hkgibbs@gmail.com>
Sent:      Friday, October 10, 201411:35AM
Subject:   Pentex v. Gibbs, et al.; Cause Number CV~1~
The Court called and advised my office that the previously filed Motion to Reconsider Order to Transfer Venue
has been set for hearing on October 20, 2014, at 8:30 a.m.

cc:   Christy Lee by facsimile at 800-437-7901

Scott Smith
Attorney and Counselor At Law
120 South Crockett Street
P.O. Box 354
Sherman, Texas 75091-0354
Facsimile 903.870.1446
                                                                                        -             -R
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  684
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                                           Co mm uni cat i on Res u1t Rep or t ( Oct. 10. 2014 11:50AM)
                                * * *                                                                                                                     1)
                                                                                                                                                               * * *
                                                                                                                                                          2)


        Date/Time: Oct. 10. 2014 11:39AM
        F i 1e                                                                                                                                                         Page
         No. Mode                           Destination                                                                    pg (s)                    Result            Not Sent
        7285 Memory TX                       9180043779C 1                                                                 P.                        OK




                     Reas.on for error
                           E. 1) Hang up o r 1 i n e fa i 1                                            E. 2)      BusY
                           E.3)Noanswer                                                                E.4)       No facsim1le                     connection
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                                                                                                                                        Pagel of I


                                                 SoottSmllh

                                                 From;:      "Scoo.smteh"'~nel>
                                                 To:         "Ch<isly l.uo" <dee@dvlslyloolaw.com>; "Howotd GibbS' ~•~t~~ma~corn>
                                                 Sent        Frida)', Oclober10, 201411;35AM
                                                                                c.....
                                                 8ubjll<l: , _ . •· G;bbo, el al;    Mlllllbe<CV-14-41665
                                                 1ha CO<Idcaled andadvioed mydll<:olhat"" pmylo""y iiOO Motion to Roooll<ld" D<do<b Tnonse v""""
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                                                 f'obrr#t ond Co\<1- AI.'-
                                                 12() s..n, c.oo..tl sn.ot
                                                 P.O. Box -'"'I
                                                 Shermarl, TaiQI.S 76091·0354
                                                 FacsQIIe003.870.144<1
                                                 Tolophone Q03.1!G8.-




                                                                                                                                        10/10/2014




                     685
                                                                                                                               . 1




                                              CAUSE No. CV -14-41665

PENTEX FOUNDATION                                             )
      PLAINTIFF,                                              )
                                                              )
vs.                                                           )
                                                              )
KENNETH VERN GIBBS; AND                                       )
CANDACE GIBBS WALTON; AND                                     )
HOWARD KIRK GIBBS,                                            )
      DEFENDANTS.                                             )                        FANNIN COUNTY, TEXAS


                  KENNETH GIBBS AND CANDACE WALTON'S RESPONSE TO
                   MOTION TO RECONSIDER ORDER TO TRANSFER VENUE,
                                       AND MOTION FOR SANCTIONS

         COME NOW, Defendants Kenneth "Ken" Vern Gibbs and Candace "Candy" Walton,

through their Counsel of Record, Law Offices of Christy Lee, P.C., to respond and object to

Plaintiff and Intervenor's Motion to Reconsider Order to Transfer Venue ("the Motion"), and

would respectfully show the Court the following:

                                                  I. INTRODUCTION

         1.        Venue is proper in Tarrant County. TEX. CIV. PRAC. & REM. CODE ANN§ 15.002.

         2.        Plaintiff and Intervenor cite only one case, In Re Fisher. 433 S.W. 3d 523

(2014). Not only is this case distinguishable, but it is also utterly and completely irrelevant.'

Ken and Candy are befuddled as to why this case was cited, as it has absolutely nothing to do

with the case at hand. In In Re Fisher, the contract specifically stated the obligation to pay, $13




1
 This case is so irrelevant, it is unclear if Plaintiff provided the accurate case. lt is suspected that Plaintiff and
Intervenor had to cite something beyond "we don't like the ruling."


KENNETH GIBBS AND CANDACE WALTON'S RESPONSE TO
MOTION TO RECONSIDER ORDER TO TRANSFER VENUE,
AND MOTION FOR SANCTIONS                                                                         CAUSE No. CV-14-41665
PENTEX FOUNDATION V. GIBBS, ET AL.                                                                                       -1-
686
million, and did not include a buy-out provision. See id.        In fact, it was undisputed that the

contract was a major transaction. !d. at 529.

        3.       Below are the relevant provisions of the Contract for Sale of Land, Mineral Rights

and Royalties ("CSL"):

                  First paragraph provides that Candy, Ken, and Howard Kirk Gibbs,
                 collectively "Gibbs," will sell thirty percent (30%) of all land, mineral
                 rights, royalties, and any other monies or assets which they receive from
                 (1) the Estate of Bert Gibbs; (2) Bert Gibbs and Kathryn Gibbs personally;
                 (3) any inheritance in any form received by Gibbs now or in the future; (4)
                 any proceeds from any lawsuits current or that may arise from seven (7)
                 different persons or trusts; (5) any assets that have previously been passed
                 to the Gibbs from four ( 4) different persons or trusts, and the list goes on
                 (collectively the "Estates").

                 Section 3(a) provides, as full consideration, "Barcroft has paid Gibbs total
                 of twenty-one (21) silver dollars minted by the United Stated Mint."

                 Section 4 states: "it is understood and agreed that Gibbs may cancel or
                 nullify this contract only under the following conditions: a) If Gibbs pays
                 over to Barcroft the sum of five million dollars ($5,000,000 US) in full, in
                 addition to any money received prior to said one time payment, as
                 liquidated damages and full settlement of all consideration on Gibbs part.

See Exhibit A.

        4.       It is undisputed that Albert Barcroft is not a licensed attorney and that he drafted

the CSL. See Exhibit B.

                                         II. NOT A MAJOR TRANSACTION

        5.       A '"major transaction' means a transaction evidenced by a written agreement

under which a person pays or receives, or is obligated to pay or receive, consideration with an

aggregate stated value equal to or greater than $1 million." TEX. CIV. PRAC. & REM. CODE ANN

§ 15.020(a). Emphasis added.



KENNETH GIBBS AND CANDACE WALTON'S RESPONSE TO
MOTION TO RECONSIDER ORDER TO TRANSFER VENUE,
AND MOTION FOR SANCTIONS
PENTEX FOUNDATION V. GIBBS, ET AL.

687
        6.      There is no Texas case law which affirms that a buyout provision constitutes an

obligation or an entitlement, and no case law which affirms that Section 15.020 of the Texas

Civil Practices & Remedies Code applies to contracts whose lone stated value appears in a

buyout provision.

        7.      The Contract for Sale of Land ("the CSL") posited neither a requirement to pay,

nor a stated value. The sole stated value of anything anywhere in the CSL involved the buyout

provision, which addressed neither an obligation nor an entitlement. Parties to the CSL were not

required to execute the buyout provision. The buyout provision was simply that- an option. One

that the respective parties might choose to act upon or not. Not an obligation to pay.

        8.      Likewise, Plaintiff and Intervenor's claim of damages in excess of $1 million did

not and certainly does not render the CSL a major transaction. Plaintiff and Intervenor's

argument, is frankly, ridiculous. If this were allowed by the courts, then every venue provision

would be mandatory by alleging $1 million in damages.

                              III.   UNCONSCIONABILITY OF CONTRACT

        9.      If the court finds that the CSL is a major transaction, in the alternative, the

mandatory venue provision "does not apply to an action if the agreement described by this

section was unconscionable at the time that it was made." TEX. Clv. PRAC. & REM. CODE ANN§

15.020(d). Whether or not a contract was unconscionable at the time it was formed is a question

of law. Hoover Slovacek LLP v. Walton, 206 S.W.3d 557, 562 (Tex. 2006).

        10.     The CSL was unconscionable on multiple levels.

        11.     Grossly one-sided contracts. A contract is unconscionable if it is grossly one-

sided. In re: Poly-America, L.P., Ind., 262 S.W.3d 337, 348 (Tex. 2008).


KENNETH GIBBS AND CANDACE WALTON'S RESPONSE TO
MOTION TO RECONSIDER ORDER TO TRANSFER VENUE,
AND MOTION FOR SANCTIONS
PENTEX FOUNDATION~~ GIBBS, ET AL.
688
        12.     The terms alone are unconscionable. In Candy's Affidavit, she provides, "The

twenty-one (21) silver coins were just ordinary silver coins, and certainly well circulated. Albert

[Barcroft] never pretended that these coins had any kind of special value to them. In fact, Albert

even stated these coins were taken out of his 'junk' silver. He stated that he needed to provide us

with something, because it would make the contract valid." See Exhibit B.

        13.      So, Albert gave twenty-one (21) silver coins, which had little to no real value, for

30% of basically everything Ken, Candy, and Howard Kirk had ever received or would receive

in the future from any lawsuit, inheritance, business, etc.

        14.     The unconscionable buyout terms were shockingly one-sided and primarily

purposed to benefit Albert, much to the detriment of the other parties. Or, read the CSL, the

Heirs could buy out Albert for $5 million.

        15.      Unauthorized practice of law. Texas courts do not enforce contracts to aid in the

unauthorized practice of law. In re: Heritage Organization, 354 B.R. 407 (Bankruptcy N.D.

Tex. 2006). Preparing and advising on contracts and settlements is unauthorized practice of law.

Davies v. Unauthorized Practice Committee of the State Bar ofTexas, 431 S.W.2d 590, 593-94

(Tex. Civ. App. -Tyler 1968).

        16.     Correspondence from Albert Barcroft and his wife Pamela clarify without

question that Albert practiced law without a license. See Exhibit C. In the summer of 2004,

Albert entered into a friendship with Howard Kirk. See !d. Sometime later, Albert approached

Ken and Candy concerning legal issues the family was experiencing. See Id.         He informed Ken

and Candy that he graduated from law school, could help achieve resolution in the matter of the

Estates, and was able to draft agreements and contracts. See Exhibit B. Albert then drafted the


KENNETH GIBBS AND CANDACE WALTON'S RESPONSE TO
MOTION TO RECONSIDER. ORDER TO TRANSFER VENUE,
AND MOTION FOR SANCTIONS                                                      CAUSE No. CV -14-41665
PENTEX FOUNDATION V. GiBBS, ET AL.                                                                -4-
689
CSL, from which he stood to benefit greatly. See /d. He encouraged Ken and Candy to sign the

CSL for their own benefit and counseled them concerning its tenns. See !d.

        17.     Albert's representation of himself as possessing the authority to counsel parties

and to draft legal documents constituted a Class A misdemeanor and was fraud.

                                       IV. MOTION FOR SANCTIONS

        18.     A motion for reconsideration is appropriate in the following circumstances: (1) to

address an intervening change in controlling law; (2) to consider new evidence not previously

available; (3) to correct a clear or manifest error of law or fact; or (4) to prevent manifest

injustice. Fisherman's Harvest, Inc., v. Post, Buckley, Schuh, and Jerigan, Inc., et al., No. G-05-

0151,2008 WL 4277001, at 2 (S.D. Tex. Sept. 10, 2008) (citations omitted). Not liking a ruling

is not a reason to file a motion to reconsider.

        19.     Plaintiff and Intervenor's Motion failed to meet a single criterion for a motion for

reconsideration. The Motion not only mislead the court on the only case that was cited, but the

Motion presented no intervening change in controlling and applicable law, no new evidence, no

error of law or fact, and no evidence that reconsideration would prevent manifest injustice.

        20.     Given the lack of consideration toward the requirements for a motion for

reconsideration, and given the lack of applicable and substantiating law in the Motion, it is

reasonable to conclude that Plaintiff and Intervenor filed their Motion solely for the purpose of

harassment toward Ken and Candy, and sanctions are appropriate, especially since Ken and

Candy (and counsel) must travel approximately 120 miles to the hearing.




KENNETH GIBBS AND CANDACE WALTON'S RESPONSE TO
MOTION TO RECONSIDER ORDER TO TRANSFER VENUE,
AND MOTION FOR SANCTIONS                                                      CAUSE NO. CV -14-41665
PENTEX FOUNDATION V. GIBBS, ET AL.                                                               -5-
690
                                                    IV.   REQUESTED RELIEF


           Ken and Candy respectfully ask that the Court:

           21.        Affirm its previous decision that venue is appropriate in Tarrant County;

           22.        Deny the Motion to Reconsider Order to Transfer Venue;

           23.        Hand down sanctions against Plaintiff and Intervenor in the amount of $_ _ ;

and

           24.        Provide other such relief that the Court finds appropriate.


                                                           Respectfully submitted,

                                                           LAW OFFICES OF CHRISTY LEE, P.C.


                                                                  /}£
                                                           -------U~----------------------
                                                           christy L. Lee
                                                           Texas State Bar No. 24052302
                                                           777 Main Street, Ste. 600
                                                           Fort Worth, Texas 76102
                                                           (817) 504-6075
                                                           (800) 437-7901 -Fax
                                                           clee(cl),christyleelaw.com

                                                           ATTORNEY FOR KENNETH                 GIBBS      AND
                                                           CAN DACE WALTON




 KI-.NNLTII Gnms -'\t--:1) C\Nilt\CJ-. W i\I.ToN's RLSI'ONSI 1o
 MOTION TO       RLCONSIIJJ:R   0RDI R TO TRi\NSITR VicNliL.
 AND MOTION FOR Si\NC'TIONS                                                               Ci\liSJ:No. CV-14-41665
 PENn·_\· FOI.-'.\D.tnON I. GIIJJJS, /J.-11 ..                                                                -6-
691
                                     CERTIFICATE OF SERVICE

I certify that a true and correct copy of the Kenneth Gibbs and Candace Walton's Response to
Motion to Reconsider Order to Transfer Venue, and Motion for Sanctions was delivered,
pursuant to Texas Rules of Civil Procedure, to the following parties on this 3rd day of
November, 2014:



Howard Kirk Gibbs                            Email: hkgibbs@gmail.com
4360 Western Center Blvd., No. 205
Fort Worth, TX 76157

Pentex Foundation, and                       Email: smithlaw@airmail.com
GBU Friends and Associates Trust
c/o Scott Smith, Attorney of Record
120 South Crockett Street
Sherman, TX 75091-0354




                                              Christy L. Lee




KENNETH GIBBS AND CANDACE WALTON'S RESPONSE TO
MOTION TO RECONSIDER ORDER TO TRANSFER VENUE,
AND MOTION FOR SANCTIONS
PENTEX FOUNDATION V. GIBBS, ET AL.

692
                                Contract for Sale of Land, Mineral Rights and Royalties,
                     and all other Assets or Monies Received from the Estate of Rert Hughes Gihbs,
                     Kathryn G. Gibbs, andior the Mary 1.. Houseworth Trust(s) or "The Kathryn
                                          Houseworth Gibt>s Irrevocahle Trust"


                :hi'    ag~.:er:~e:1!     bct\•:ccn .·\i:Cert t:,n.n FLrcrr:·:.                her.::i:1;:i:-::~   "Barcroft'·. ,mLi        Kcnr:eti~

                Vem GJbs, Candace Gibbs wa·.ton, and Howard Kirk Gtbbs, hereinaf:er cr.llect:vely
                al5c ''Gibbs", is a contract for sale of rbirty percent 30°/., of all land, mineral rights,
                royaltie.s. and any other monies or assets which Gibbs, or any of the three :ndividuals
                referred 10 collectively as ''G1bbs'' m t":1is agreement, ~eceiv·~s, cr lS due, fro:r. tb.~s date



                tJrcc::L·ds. or any other ?rcpcrry assets                      ~ccei\·ec     frc.m any       t~ust(s)   ('f   :rans!e.;s :Torr. Bert
                r-tc:ghes Gibbs, Mary L ; [n:sewcrth. ru:d'o;                          K:.~:i·~~:J    G. Gibbs at any r;me, !)ast,           p~r.:snt,

                Of   f.:tu;e, i;;c!udmg. bU!        l\Ol   !iJ'(;ited   tO.   cr;c: :"i1l!c\>. ing;

                      al All proceeds from he Estate oi3en                           Hc;ghe~ l)ihb~.         a1:d:or,




                            agreement, are        beneficiar:i~         anl2. ~~r~

                      c) Ail ir.her:rance of a!1y ki:1d an(l in any tom: by Gib~s. or any of the :r.dividua~s
                            ref::rred :.o   coliecti\"l~:y     as "C:ib:JS" i:1 this agree:nent ar.d/or:

                      d) All proceeds frorr ..!ny Ia•.\ SUit -.v~ici> ct.::--C!1~ly exists, or :r.s.y ar:s~. because of, 0~


                            Gi~bs,       K.ip Hugh::s Ci1bbs. Sand~a faye G:obs, ''The \1J.ry L Hc'.!scwortn
                            lrrevocabie Trust''. ··The Katl-.r>'" Houseworth Gibbs Irrevocable Trust'', and anv

                            ot~cr ~:,~st(s) to ~'~ich G1bbs a~e be!1eficiary(ic.:;} or t:-LlStee(s) ~n a.r.y fonn; a.."":d/or.

                       e)   •\!I property and.·c·: assets wh:ch may have been previously passed to t:1e-:l~ bv
                            l:krt hughes Cii'::lb:. Kc.:bryT: Ci. G:':":hs. ··-:-~e :.12.r:: L. :-louseworth !r.ev.x:~l->le
                            T~:.:st'',   and:or "The Kiltbyn Hc''lsewor:i: Gibbs                        he"Clc~bie Trc:s:"';        ar.d   ~:·_                             -:..-~·   .
                                                                                                                                                             .    .:·.··
                       f)   Xl othe~ propcr:y ~.!1d ·c:· assets passed tv Gibbs. 0~ :my o:' t!1e Hldividu::ds rcfe:-reJ
                                                                                                                                                                                          -.
                            ro coiiectwely         :.~s ·'(i~bbs"         in this     agreem~nt,         trorr. any source ;nvo\nng               Ber~ ~ '.: .e:::..~·-:~:.:.. ;; .·
                                                                                                                                                            ·:-:'·:::~---
                                                                                                                                                                      'y" • < ... ·

                            Hughes G1bbs, Kathr:--n               (i.    Gibbs, "The Kathryn .Houseworth Gibbs lrrevocab!e                                       \;;~~:~~y . .-··
      Contract iOr Sll~ of L2r..:i, M.neral R:£!"-t~.
      R.(.yalt:c-5 and Ot~zr A~~et~ anC!or r,1vntc5                                    !                           ~~,~~~~~~ d:;?-lf}t {'Jfd                                .ii
                                                                            ----------------------                                                                     ~·-----·-·




693
                                          ·.ruslfs) or          busine~s G~garnzation(s)                 cf any :.-i::d, whid: mig::t ';:;e :.;r.co-. ered or

                                          discovereJ ir, the t'i.1ture; and/ar,

                                   g) A\l property and'or ot!tcr assets                           i~1   any trust o: fom1er trust; ar.d, any property cr
                                          ot::e~          assets m a::y corpor;nior., limited                    )iai::i~Jty   compa::y. partnershw(sl, sole
                                          tJTl';Jfletorship(>l, o; any                 oth<~I   !.H:si:-:ess   ()rganiza:iu:~ o~'   <:cny kird !n whi;::l". cne 0"
                                          :11o;e of tlw Gibbs are }'.v!le~s. :r.t;tee(s) cr he:1eftciary(tes).
                                   h.) S;Jecifically exempted                         5-o~<   thjs agreement are any propemes an(i'or other assets
                                          which are cuncntly under the :'ull ;:o:1'rol of Gibbs, cr ar.)- of the individuals
                                          referred to collectively as "Gibh;" ir: tb!s agreemen!; provided, however, :hat if
                                          an; legal work is r:::yuired :o c.id i:--. :!':<: cuLeciar. o! said assets, or the sc.k o:-




                                          property and/or asse:s ;ts:ed above,                          :11~d ~hai:   !':ave :-:o ;:;xcmpuon to         t~t·   terms ant!
                                          constderations of t!1is agreemen·.. Also excrnptetl [rCllT. this agreeme:u are any
                                          :1ersor:J.\ itc!i>S           :~at   we:c passeci :o             Gi~bs      from :heir fatht:r, which were not




                          This sale uf 30% of all land, property und other assets described herein above shall
                          be governed by the following terms. conditions, anJ 1:onsiclerations:



                                   G1hcs, or any of ~he ir.chiduals refwed tc co!lec:ively as "Gibbs'' i:-: :his agreet:~et~t
                          s'tatl gin:. 'ncirlhis!her :\:11 coop~:ation to ail e:•orts by Bc<.rcrcft to co!lect anv                                                 oi the
                           funcis rtil.:rrcJ. ~o in thts ag,r:·em~nt SJid C~)-::Jpe~a:;or. sha~l _;dude. iJui not ~e l:mited to,
                           providing :-1ecessary                    mfom1J~lOl:          <tnd cocum.:ntat1on, be;:1g available to g;vc                         tcsl:I:,on~,

                          and givmg full su?port to the overall efi(jft o{ col!ecung funds and ~;ssets ti·om tl-;e

                           sou~ccs          stated herein .


                                    .4.11) }:art)         he:-eto Sf. .il: h.~\-'t:   t_';e ~i.:_;\":l tO Or(\~·:.< ~.()!llp!ek inY<':I1iOT)      c: <ill ;Jf0ptr1)' C::-:d   :·--:=..~:-




                           oth:r--;l"Ssets (:es~~ed he:-e: n at an,, tin·.~..- ar.J aL pa;·tics J~rt:l· to pro'-·ide hi q coop<:'rJ.ton




      C ....·:-:;~.._.,   f.:•r   $<.1k --~~~ Lar.d 1 \1:r ::rai R1gJ·:s.                                                         Jr,;LDis <Ji"
      R.Clyan;c:; 3r-,':J Ctho;or           :\s-.:=~-~~   3Hd'o; .\1on:es                                                         a p~rtJes




694
                             L::1iteJ S:ates       .\1~nt   pho:ocopy o:· sa:j co;r,s attac!"led hereto as Exhihit "A''. and
                             mcorporatcd hereir. for all purposes as real consideration under this agreement,
                             and Glbbs hcrt;hy acknowledges receipt of same\\ i:h this sign:r:g: and.


                             av ai:ab le funds, property, anci or          .)t~er   2ssets from :he sources stakci herei r~. anu.

                      c l Barcroft, at h1s expense, w1i! :Jrovide legal coJnsei by acquiring a L:er:se:
                             attorney for any           ~easonab!e     and prud,:;nt actions necessary to the collecting                o: the
                             funds from the sources stated herem: ho·...·ever, should Gibbs, or any of the
                             ind; vidL,ai Gibbs, fee: that t:-teir.hisfher 1r.te:-csts are r.ot properly ::.erved :Oy tr.e
                             at:or~cy      Barcrof. prcvidcs. t:-tat par:y .,,_.ill toe rcspons:bk for t:r.e              le§,a~   tees of ar.y
                             cthe~    a:ton'.':.)iS) hired by C<i:->bs or        a11y   iTJdiV:(:'Jal Gibbs, :o    protecltheirhis'~er

                             :n(h1d~1al        i:Hcrests.     L.i that cve!'lt. Jt IS ag:-eed by ail parties he.reto :hat the
                             attorney hired by Barcroft v.:d: :represent oniy Barcroft                        i~   all future action(sl.
                             Furthe~.ore,           it is specif:.::tll)   2.gr~ed :~at     smd a:torney hired            cy   Barcroft \\tli
                             represent or.ly Barcroft si;Jt.:!d a chsc•ute i!:"'.Se he:-v:een ttc                      pa~ttes ht:ret~):     and,
                             Gibbs. :<ld:vtdual!y a;Jd .:o] cCt:\d:•. C~gree r.r•t :o ~:aim :::o1fL:t of :nterest shoL:l~
                             sa;d a:tomcy represent tLrcrof' :r.                  3    cor:11ict ber.vee:-1 ;he partit:s :;creto; ar:d.
                             Gibhs, collectively and inJividuaily, hereby waive their:1ils,he~ right ~o clai:11
                             c:ont1ict of interest with regards to satd attoraey m sJch ins~ance.




                 the fo!!owing con.:!:trons:

                       a) If Gibhs pays over to Ba:-croft tb;                  SU'!l   o:- ~vc: r.1illion do~;ars (.SS,OUO,OOO         ((i   L'S.l
                              in fuli, in addition to           ar~y   moEey received prior to saic one :imc payment. as
                              !1quidated damages ane ['Jl: settlement of a;: consideration on Gibbs par;.

                        >)    :f T~ar:roft vo:u:narily 2.~:ndon; :f;c efton :o coLe:~: tf:e funds 5·or;1 the sources                                    •.-.:::-.:--<     ~-
                                                                                                                                                                         .·:....


                              s~ated     herein: r.oweve, :n th;s ·:v.:n:. Barcroft sr,al' retain ai: anou:1:s J.l~ead ~                                  '-..... "'-,



                              recctved. and '.VI!! cor.!m'le               w   rec::iv::: ar.; i'JtL:~C pro~ecds froM any oi the

                             propcny or ot~er assets, and will r::tair~ his owners~1ip interest 111 any :->ropen:y                                   ·;::~,~;;:;: ·
Co~""'!r;;:.ct
~oya1r1<~s
                 !·or S;.!.je ,Jf Land 1 V.tner3l R1gLrs,
                  <::-td Otht"r Assets and tor ~-1omes                                                  ~~:·~::~.~:-    -4}:f./I h elifJ .Jt_


695
                             Gihos, or is                 ~a;.1:1g   knefits of a:1y {.:r.c at the time o:Barc:-oft's aba.'1Jonme:1t; or.
                             which is brought mto the con:rol of Gibbs, or start pa,yir.g bc:1efits at a later date,
                             provided that said cont:ol or paymems is a result of                                         actio:-~s     prior to Ba;c:-oft' s
                             ah.andonmcn~.




               5. lf Barcroft dies or oecorres inca':)acit::ttc:::, the contract will remain in force, and the
               assets whlch have been accessed and are paying at the tllne of Barcroffs death. or wbch
               are later accessed as a result ofBa:-croft's ,;::fforts, wili go to his heirs and assigns.


               6     :1 IS    hcrcbv agre:.:d that thcr:: shall be                        3   bLtsi:K"ss orpr!i:tation. the :.:xact ty~::.· to he



               recc:\ed fro:n a:1y of rJ:c                           pro~erty ~~nd,or    assets covered hcreir. shall be dcpositet.! :r.to                   ~

               bank account in that entity's name, a!1d that ali expenses necessar; to the continuation of
                rc.venuc being paid to the panies hereto                                11.e.    property taxes ore the royalties or property
               covered herei71. and anv :1ece3sary ex pen:;cs                                   ~.~1c   n as   well U!J:..:ecp,   etc.:~   shall be deduc::::d


               have a 50% vote in the opcra\lon of said busmcss organizati,Jr:; and, the on:y funct1,::J:1 o[
                sail.! business organi~:ation shall be to fac:l~tate the agreement                                                <!1   this co;:tract.   :\ny
                monies paid out of :-;aid ot:st:-:css organ:za:ion, otner than the agreed upon sp:it between




                Gibbs, and             2~.:;.] 0,(.         to Howard :Zirk G;bbs, at cacn tr:st:nce of ctspersa! lC' the pa.rcl:::S
                Any party may demand a split of the assets of said 'ot:sincss organizatior. at any time


                        ~f   either par:y should brea.K the terms of ti1is agreement tn any fashio:-1. or attelilpt to
                :e;1<ie:- the conrre1ct i:-t\'ai:d, :r: any way wh<ch 'xould requ:re legai action to concc: o:
                c:;force, the pany found at fault, or t:Jc par:y fai!u-,g to ?revail, shaii p2.y all iegai
                cxpe:1ses of any rype to:-                          hur;se~f'h~rselL    a::d for the prcv:liling pa:ty.
                                                                                                                                                                 ...--:::·-:··-



                 8. Th1s cortrac: is wri:tcn to co:1:ply w:th the laws of :he State of Texas: 2.nd. anv ·....                                                    <,....·


                 provtston io:.~:-Hi by a cou:-t of conpcter:l :unsd:c:ioll to be ir. no11-compiiance shall be

                                                                                                                                           $
                                                                                                                                                                           ·r~   .-


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                        C~htr ,;s~~t~ ~T"':C,.\Y f-..~:)n!tS
                                                                                                                                                    KU_t fh!J . ·~~



696
    I




    I; .
                       intent of the provisior. as closely in r!a.:e as po~s1bk. 111 r:o en:nt shall ar.y such findtngs
                       or: or.C' provision affect any other provision wtthm the cor:trac!.

I
                       9     '\lotwithstandmg any other provist<Y.             umic~    c!1e :aw, it is     cx~pr:::ssly        agreed ::1c.t t!-.ts
I
I                      resolved          tn   L'1e courts of Fannir. Cour:ty, :ex as    T~e   s:gning hereto of this contract by all
I                      part1es completes ttre sale of 3() 0 :o of a~! propert; and assets o:Gibbs to Barcroft.


I
I
i
                       10. Thts agreement shall be bmdir:~ on :1.ll heirs at~d assigns o!"the parties here:o.

!
                       ll. ~o lien(s.l may b~ pla2cd u~o'; ;:u;y o'che ~mper:y co\'e~ed ~erein ur:iess s:Jch licr:fs)



                       l:leforc a notary public.


                       12       AI: agreerr.:::nts bc:'xeen the partie'       nere'~o   art conrair:cc in writ!r:g ir: :his cor.trJct.


                       <!.;1\e[ld;ncr,ls hereto rr.usl be in\\ ritir:g. u:u si;;,:~ej h> 2\1 parties before a r.otary puShc.


                       13. Aibert L;n:-1 Barcrof:., Kenneth Ve:-:~ Gibbs, Ca:1dace Gtbbs Walton, and Howard
                       Kirk Gibbs, the principal parties hereto, kreby agree to this contrac: in its entirety
                       without reservatior.~ CL'1d, eac:, pleJge :1e\·e~ :o challenge the te:crs, co:1d:tions. ir:tentior.s,
                       2.:1rfo: C;J;:s:dera:Ions :.Hider t!-L:s C\x:::r,!Ct w;::: 1::cn res;:-ec::v~· sign:ng hereunder




                                                                                              . kl, v~ ~-IL
                                                                                              h~T'c:.elh   \e ..• u,bb:o

                                                                                              _f_rM«l(i·~ MJ~ !Jalb-
                                                                                              Canrlace Gibbs \\'alton


                                                                                              Cli11        K>rk Gibb_s_____


           Cc:~~~ccl   for S3ic   c: L.:-!::~.1 ...,Lrlcri'.!   R1ght!-i,         5                        l~::J:J~s     cf
           Rcya1~:~s    :v·.d Q[:-'.er   ;\~se~~   a...,c·Jr    \l~.I'IIC5                                 ;.:..:; P.J:-:Je.5




            697
                                                               .\ Cf\:...'\ 0 WLE DG E\ lF.:\T


           STATE OF TEXAS
                                                          Subscribl~d,   Sworn. and Sealed
            COl.'NTY OF                 COLLI~


                    On th:s 11F day of iv1ay in the ·,·co.r 2Cii:05, .\!bert Lvnn Barcroft, known ~o :-;;e. d:d
            personally appear befo:-c me; and after taki:1s the oath. depose;: and says tha.: he JS tile manwho
            executed the forego11;g instn11:Je:1t; ar.::l, fiJnher stated t:1a.t he executed the same as hls free anc
            in:om1ed a•:t and deed :(,,the purposes stacd thcrem. and wit~. J f:;l\ uders:anding of O~c s::Jpe oi
            :he p~o\'isions Ct':l:a;r.ed therein; m;j, that he~:de 'iy all sa:d prnv;s:ons



                                    .
                                                                 =-6?~
                                                                  L~-:1n
                                                                 ,A.lbert
                                                                          ~--~·
                                                                         ~-     Barc:roft




                                                          Subscribed, Sworn. aud Sealed
            COli~·ry           OF COLLIN

                   Or. th;s 1;_::·, dav cf 'k'-Y t:: the year 2·~~(JS, Kenneth Vern Gibbs, know:1 to me. d1d
            personally appear before me; a:1d, <!.fkr ta!<ing the oath, depo~.es anc: says that lte is the man \vho
            executed the foregoing instrument; and, further stated that h~ executed the same as r.is he ar.d
            informed act and deed f.1r the purposes .:;tated therein, and \\itf': a full ur.derstanding of the scope of
            the prcw:sions cor.tai:1ed ~hcre1n, a:1d th3t he agrees :o c.hide by d\ sa;d provisions


                                                                      I~ -z/~~ fl~
                                                                               ·-
                                                                 --..6-~----------~·                 u...._.   --·
                                                                 K::r.~,et:1 \. t:::-n c:i bbs


             Subscribed and sworn to before me this 10''' (,ay o~-May i:1 the year =·=~:s.
                                                                                                 '



                                                                                                                               .<-:.;:=:.-~:~~
                                                                                                                         .· __=-::   ~   .... - - ....   _~



                                                                                                                                     . · .... r· .
                                                                                                                       .._           ..--·-,  ............,
                                                                                                                       ·..,. :--·                ',.--~:...

                                                                                                                     :=::..:.:..·.
                                                                                                                        '"<~":~~:~~-,i':
  C:0(t~ac: f~H   5::Jc of LJ.~d.   'vi!nt:rJIR~gt~s.                       6
  R.~v-~ :·e~ ~nG O:he~    r.. s~ets 3.:-.cLJr \-1or·cs




698
             STATE OF TEXAS
                                                         Suhsl'dbeC:. S>H)rn. and Sealed
             COt::'i1Y OF COUJ:\

                      On this uf day of :V1ay Hl the yea; 2((,5. Candace Gi•bbs Walton, Kr!O\Vl1 to :T:C, did
             persunally app<;!ar :1efore me: and, c.;\:~ t2~:ir1g the oath, deposes and says that she Is the worr:an who
             cxec'J.ted the foregomg instru:11ent and, fur:h~r stated that she executed the same as her free and
             in(ormed act and deed for the ;)Urposes stated :her,~in, and with a ::Ullw1derstanding of!hc scope of
             the p:-ovis10r.s contained therein: and, that she agrees to abide by al1 said provisior.s.




             Subscribed a!1d swom to before me ~his ;c'" da~.. ot:V1ay                   :n the year 2005.
                                                                                                          \




                                                                   /~'
                                                                  . '              "    r;)~(~
                                                                                           .                            I·.
                                                                          \J,~_--;- -             ~-i ,~           ~.
                                                                -.-
                                                                \Q";l:-y ;:1   ann tor •ne State of·'!.       xc.~
                                                                                                              .;        --




                                                         Sub;;cribed, Sworn. and Sealed
             COVNTY OF COLLJN

                        On this 1ot:; day of \i:1y in the y::::tr 21}05, Howard Kirk Gibbs, known ;o rr.c. did
             personally appear before me; .md, atier taki:-~g the oath, deposes anc says that he rs t~e man who
             e:·:ec'.!:ed t:-te foregoing inStrument: 3.~d, furthe stated :hat he cxec'.lted the sane as his !Tee and
             mfom1ed ac: and deed t~;r the Ct!I~'oses ;1arec thcre!:1. c.nd v.-itr. a fullur.derstanding of ihe scGp:: o"
             the provisio:1s cor.taincd ti1creir: an~. th11 he a;re~3 :c: .1b1de by a:l sa!d p~ov1sions




                                                                 -l~~; -------~----- ---
                                                                 He· ard Ki:-k Gibbs




                                                                                                                                   .· .-:·-~-=_;.-·7·~~ :;:>~~
                                                                                                                                   ·--~-' /-----~· -_~\7
                                                                                                                                            .....   _   .../.
                                                                                                                                                                 .o
                                                                                                                                       /   -~. -~~~             ; -~-


Co.,!~<1c:   fc; Sa!e of La:-:d. ~..,1q:er~:   R~gh~s.
R...~:'a::~-..:~ -~·:d J:r.e . ~sscrs a;.d ·o~ ~1orL::




----------------------- - -                                                                                                   -·




 699
                                                CAUSE Ko. CV-14-41665

         PE.'t'TEX FDlJNDJ\ TION                              )                 IN THE DISTRICT Cot."R.T
                  PLAINTIFF,                                  )
                                                              )
         vs.                                                  )                 336Tit JUDICIAL DIS rR!CT
                                                              )
         KENNETH VERN GIUBS; Al-.U                            )
         CANDACE GIDBS WALTON; AND                            )
         HOWARD K.rR.K Gums,                                  )
                 DEFENL)ANTS.                                 )                 FAN"NTN CDI..:NTY, TEX:\:l



                                       AFFIDAVIT OF CANDACE WALTON

                 1, Candace Walton, having been tirst duly sworn, state me following:

                I.      I am over rhe age of eighteen ( 18) years. I am Defendant in this Matter before
         :he Cow.. I confirm that aJJ of the fullowing facts arc troe, correct a.nd undisputed.

                 2.        l have k.no\\'D Albert Barcroft since the end of 2004. Alb....--rt has slated that he
         meet Howard l{jrk Gibbs sometim~ in the summer of 2004, about another problem that Howard
         Kirk was having. Then Albert offered ltJ help settle the csmtc of our f11thcr, Bert Hughes Gibbs
         (..the Estate''). Albert stated that be wanted to help my brothers and myself achieve resolution
         concerning the F.stal~:. Albert assured us that he had attended law school. could provide advice
         about the Estate, and was able to draft legal contracts and agreements. AJbcrt presented himself
         as having my b.::!st interests at heart and even told my father that he would do everything he
         could do to save at least some of my father's estate for his kids.

                 3.      Albl..'1'!. was and is not licensed to practice law.

                4.       Albert drafted the Contract lor Sale of LaBd ("the CSL") without assishu1cc.

               5.      Alben provided legal nd\-icc to Ken and myself conc-.cruing the C..'SL.               He
         encouraged us to sign the CSL and said that it would be to our benefit to do so.

                 6.      I did not have an al1orncy to assist me at the signing of the CSL.

                 7.     Alber!' paid Ken, HQward Kirk, and myself a lotal of twenty-one (21) silver
         coins, so seven (7) coins a piece.

                 ~-     The tw\lnty-onc (21) silver coins were ju.o;t ordinary silver coins. and certainly
         well circulated. Alhert never pretended that these coim; had o.ny kind of special value to them. In
         fact, Albert even st.1tcd these coins were taken out of hi~ "junk" silver. He stated that he ncedcti.
         to provide us with something. because it would mak~ the contmct valid.




                                                                                                      ExhibitJi
                                                                                                    Page_/Of
   700
---·-······-·-·-----     ------------------
             ?.      Ken und 1 have questioned the legality oftlJc CSL for some lime and ccnainly it
      was in dispute prior to the onset of tllis litigation.


             Further the Affiant saith not.

                                                   1
                                                  1 a1~__iu!!i_&~---
                                                 &dacc Walton

             SUBSCRIBED AND SWORN TO before ml!              e Walton on this 8 tJf,.. day
                                                            by
      of~ovember,2014, to uttcst win1css my band   ands~a
                                                     office.




701
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                                                                     Form Format



~-----------------------------~-------------------------------------------_.
    Date      3/06/2013   T:me   10:03PM 10:03PM :Jurat:on         0.00 !hours'                     Code
    SubJect      Re: FW: GWB Family and Friends Trust ATTN: Sheraz                                   Staff   Christy llee
    Cl:ent       Walton, Candace l.                           Matt2rRef Taxation on Settlement Proceeds- IJ MatterNo
    From         albertbarcroft@gmail.com
    To           Christy Lee
    ::c To
    sec-.:.
                                    •days befcFE:• Folio,·.     N   Don€:: N r--.;ct:fy   N Ci:ae   N    T;:gger N Pr1vate N Status

    Custom1                                                                  Custom3
    Custom2                                                                  Custom4
                Hello Christy.

                I am sending this e-mail to answer a couple of your questions. I will also give you a call in the next
                couple of days to discuss any matter you '<'.ish "N:th you fully ll:ve :n Guatemala so I will call you. Is
                there a better time for you?

                First. I am neither an attorney nor a CPA. and I have nothing to do with the account:ng for GWB Family
                and Friends Trust. Jack Rankin is the CPt\ for the trust. and Danny Unger [who I believe you have
                already spoken to] helps to prepare the numbers to send to Rankin. I suppose you would call me a
                facilitator.

                To give you a little background. I caiT'e in contact with Howard Kirk in the Summer of 2004 because of
                another problem he had. As we got to know each other. he told me one of the most incredible stories I
                had ever heard. At first. I truly did not believe :t. Howard told me that Denton County had killed his
                father [although his Dad did not die for another 5 months]. and that a JUdge named Don Windle had
                sided with one of his brothers and stolen his father's entire estate. As I got more involved. I found all of
                his wild stories were true. I promise Bert Gibbs. on his death bed. that I would do everything I could to
                save at lest some of his estate for hi~. kids. I kept that promise.

                The worst part of the whole story is that a final judgment was in place for well over the 30 days
                required for finalization which gave virtually the entire estate to Kip. the other brother: and. in which
                each Candy. Howard and Ken had a :~.1 million dollar final judgment against them It too was final.
                and there was talk and action towards tak:ng their assets from them. I found the entire scenario to be
                totally unfair and unJust

                I have a close friend who is an attorney. I took it to him. I also :nvolved Danny Unger. who was a good
                friend and is an excellent researcher. Together. we looked for a way to break the final judgment. After
                about a month of research, we came up with something we thought had a chance to work- a bill of
                review. We realized it would take a 'ong time. a lot of research and hard work, and money that we
                really didn't have to expend. Enter Pentex Foundation.

                Pentex Foundation is a private not for profit foundation in Panama with whom I had extensive
                dealings. I knew they had some money to invest. and I went to them with a proposition·· finance our
                battle and get a share of what we win. They agreed. and put up S250.000 for expenses. There were
                many times I thought we would not \Jet that money back.

                The deal I took back to Candy. Ken <:,nd Howard was simple [they did not know the foundation was
                involved at that time]. I would get tre money for expenses and do the work for 30% of whatever we
                recovered. The 30% would include me. John Skolnik [the attorney]. and Danny Unger. The Gibbs
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                                                               Form Format




               agreed, we did a contract. and we went to work. The next 5 years of my life was totally devoted to this
               case.

               After we were rejected in our first attempt to the Court of Appea:s in Ft. Worth. it became clear that this
               matter had gone political: and. that if we were going to prevail we needed someone with clout in that
               court. I started looking. but I found the same thing the Gibbs had found before I came along-- no
               lawyers wanted to touch this case. After al:. it was over. settled: and. a final judgment was in place.
                We were close to admitting defeat when Danny told his brother-in-law. Jay Henderson about the
               case. Jay practices law in Kerrville and Houston. He and I talked a number of times. One day he
               said, I'm in. Let's see who else we can get. Enter Rickey Brantley. Scott Pelley and Virginia Hammerly.
               all class mates of Jay's at Baylor. We met several times. Finally. they agreed to take the case. The
               cost would be 10% for each one of thHrn. and 10% for expenses. total 50%. I took the deal to Candy,
               Ken and Howard. They all agreed that there was no other chance. everything was already lost. We
               signed the deal with these guys

               The Ft. Worth Court of Appeals. obviously totally void of conscience or ethics, were putty in the hands of
               Rickey Brantley. Rickey used the exact same petition that we had filed 7 months earlier [and which
               was dismissed without hearing in 3 days]: and, the court granted everything we asked for. Although
               we were still a long way from the finish line, the tide had turned. I think In still have the copy we wrote if
               you would be interested in reading it. All Rickey did was change the signature page.

               So. that's why the Gibbs' portion was so small. It carne up as each one [Candy. Ken. Howard] started
               being 2.1 million dollars in debt. erased the judgments on eactl. and gave them what they now have.
               When I carne in. no lawyer would even talk to them about takin£J their case. and it was over. Now they
               have something.

               As for the voting shares of which 50% are held by Pentex Royalty Trust. that was a condition placed by
               Pentex Foundation BEFORE the first dollar was spent. and as part of the original conditions. What we
               were looking at was a family that hac already cut each other's throats more than once. In the short
               time I had known them. I had seen them band together to fight a common foe. and then be willing to
               plow another sibling under. It would take an idiot to go into a situation where there was a lot of money
               at stake where they could band together a•d vote to hurt or limit another party. We are actually seeing
               the wisdom of that decision now. because two of the three [Ken and Candy] have decided they do not
               want to honor the Family Settlement Agreement that everyone agreed to that ended this mess. That
               agreement calls for the immediate sale of the land; however. it has been well over 4 years, and the
               main part is not sold [it was not even listed until last summer]. Ken [the Executor of the Estate] has
               stated publicly that he will never sell the home place. which constitutes about 2/3 of the total land
               value.

               Pentex Royalty Trust has never usecl its voting powers to force any issue: however. it would use those
               powers to keep the Gibbs from total·y changing the deal.

               Since Pentex Foundation is. in fact. a foundation. there is no beneficiary. I was compensated out of
               their share for my services. as was John Skotnik and Danny Unger.

               As for your concerns about the K-1':s. I share your view. PentE•x Royalty Trust. whose sole beneficiary is
               Pentex Foundation. files a tax return every year. and makes monthly tax deposits on the income it
               receives. The Estate itself is holding everything up. I have been complaining for the last two weeks.
               Pentex Royalty Trust was also forced to file an extension it did not want to file. GWB Family and
               Friends Trust had to file an extension for the same reason. While it is my opinion that Rickey Brantley
               is one of the best attorneys I have ever seen. especially in that court in Ft. Worth. I am not pleased with;,~~~iii ;.
               the way he and Ken are handling the Estate. Rickey Brantley is the attorney for the Estate. Scott _-Q~•. ; •• "····~, "q~\

 7.03__ -------~---------~- --- ---- -------- .-· --·-- ------------------ . ------- ------------------        Exhi: :~,~-          \~;:::
                                                                         2                                        ~i                 /tt7i/
                                                                                                              Page- .-'- . ......__ --i:~:c
                                                                                                                          \

                                                                                                                              .               ""\'
                                                                                                                                  ~1_(1 ~~-
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                                                              F:xm Format



               Pelley, Sherman, Texas. is the tax attorney. GWB Family and Friends Trust has no attorney.

               This is by no means the entire story. That would take a rather large book. But this may give you a
               place to start. and I will supply you with all pertinent information you request when we talk on the
               phone.

               Best regards.
               AI Barcroft




  -704-----------------------------                                    3
 Beverly Miller
 From:            ropingal ropingal [ropingal@gmail.com]
 Sent:            Monday, September 24, 2012 6:19PM
 To:              Candy Walton
 Subject:         Gibbs Family


Candy,
I have been holdiJl9 back for a lon.g time .... now, no morel!! I HAVE HAD mill!
Over 8 years ago, Howard came in to At• s office, and I have regretted it ever
since. Our WHOLE life changed from that day till now. All AI ever wanted to
do was help you guys. It started with one small problem and escalated into the
biggest NIGHTMARE. For YEARS, your family squabbles have interrupted our
life. Our family BIRTHDAY's, THANKSGIVINGS, Christmas•, and other
holidays were not even SACRED t(l you. You KNEW when you called MA~
times, that AI was leaving family 9et-togethers, at my DEEP, HEART-FELT
dissatisfaction, to meet at Denton restaurants or McKinney locals, to HELP you
guys with •things that could not wait one more minute!!'. You brother Kip HAD,
IN FACT, successfully BEATEN and STOLEN everything, ruined your fathers
health and ultimately killed him, and even, including your dignity was stomped on
at that time. AI invested OUR ENTIRE retirement savings and annual income in
your MESS, while I worked and scraped without his help to keep our life and
money affairs in order. FIVE YEARS, he invested time and money and
what EVER it took. SOLELY TO A.ND FOR YOU .... FIVE YEARS .... to get you a
WIN IN COURT. And NOW, after FOUR MORE years ... month after
month ... year after year ... YOU JVST KEEP STIRRING UP SHIT ... accusing AL
and everybody and their uncle of cheating you and disrespecting you and the
ICING ON THE CAKE ... is to say that he took advantage of YOU when your son
died. AL, for DAMN sure, tried to get you to wait to sign till you were not
under stress. SIGNING WAS the RIGHT THING TO DO ... but he wanted you
to wait. YOU INSISTED on ending all the trials and tribulations and even said
TO ME and countless others ... that you should have been spending more time
worrying about raising your kids and family matters than being angry and bitter
over the contracts. WELL, YOU ARE RIGHT BACK THERE AGAIN. Why don•t
you get on some damn medication for OCD. EVERYBODY Knows you need
it ... and everybody INCLUDING nte, has tried to be tactful and helpful to get
YOU to a better place and understanding of your life ... for you AND FOR USIIIII
TWO YEARS ago, I wrote you and told you were raising Al•s blood pressure with




705
1
                                                             -.
     all this shit ... and you said you wer•e sorry ond eased up. BUT IT DIDN'T
    LAST. You have pushed him TOO for now .... he HAS to give up on you, before
     it kills him. TRY TO REMEMBER, HE IS NOT THE ENEMY ... HE IS THE ONLY
     REASON YOU HAVE WHAT YOU HAVE (whether you are enjoying it or not).
    TRY TO REMEMBER THAT KIP DID NOT BEAT YOU OUT OF EVERYTHING.
    THAT THERE IS NO 'NEGOTIATING' ANYTHING NOW ... the agreements YOU
    AND YOUR BROTHERS MADE, were made YEARS ago and ordered by a court
    and judge IN YOUR FAVOR. And at the time .... you were DELIRIOUSLY HAPPY
    with the deal that was made. NOW. . . . FOLLOW THE DAMN ORDERS, GET US
    OUR RETIREMENT BACK ... AND l.ET US MOVE ONIIIII Will it take ANOTHER
    tragedy to OPEN your EYES and your HEART???? DOES the TRAGEDY need to
    be my HUSBANDS life???? HOW DARE YOU accuse him of deceiving you,
    disrespecting you, cheating you, .... after ALL he has done for you. He has tried
    to help put you and your brotf1ers together ... and YOU and YOU alone, stir it all
    back upllll You are like a bad soap opera .... DARK SHADOWS ... what hateful
    gloom lingers around the next email or phone call. .. ??? If AI had not taken you
    guys on ... my life would still be normal. YOUR FAMILY Is responsible TOTAU.Y
    for the mess I am in now .... AND YOlJ REMEMBER ONE THING, if you
    remember NOTHING ELSE .... if something happens to MY HUSBAND .... you
    have to deal with me .... AND l..ADY ... YOU BEUEVE ME WHEN I TELL
    YOU ... YOU WON'T LIKE IT. I USED TO BE A NICE PERSON, BUT NOW, I
    AM ONE ANGRY, HATEFUL, SPmFUL,DEPRESSED, VINDICTIVE BITCH after
    the last 8 years of PURE shit, having to keep my mouth shut. Watching you
    manipulate EVERY DAMN STEP of this mess into something PERSONAL ABOUT
    YOUII!II SCREW EVERYBODY ELSE ... JUST LOOK AND LISTEN TO
    'CANDY'. Poor CANDY didn't get 'balls' .... well GROW A BRAINIII! Go look in
    the mirror .... see if you like knowing how you misuse the tenacity and intelligence
    God gave you. YOU PUSH everybody away from you .... and will be one lonely,
    miserable old lady someday if you don't START TODAY, thinking about other
    people instead of only thinking about YOUIIII
    I know you are gonna come right back at me .... but you have no ammunition for
    me. YOU have thr:mked me over and over and over ... for allowing the time taken
    out of my life for your family ... for 'sharing' my husbands time for ya 'lis
    problems. GO AHEAD, tell me just WHERE THE HELL I am wrong in even
    JUST one line of this. And one more tf1ing ... no matter how STUPID you have
    behaved ... how low you have stooped, how MEAN you have been ... you can't make
    my husband turn on you. He is done helping you ... but he still won't do anything
                                             2




     706
· that hurts you. I am NOT THAT WAY. I am BmER and feel like I have
  nothing to loose. And if I feel justified in taking a path that helps me ... even if
  it is bad for you .... I will. AL is not that way. So BE CAREFUL, lady. YOU
  STILL NEED HIM .... He has been sick all day after what you sent him this
  morning. YOU FIX THIS SHIT ... get KEN to do his fucking job ... stop ruining
  EVERYTHING GOOD that can come out of my husbands intelligence, time,
  money, LOYALTY, and health. I don't know if you are just this crazy
  MEAN .... or unGODLY greedy with your insatiable need for power .... AND .... I
  DON'T GIVE A RATS ASS which it is .... JlJST FIX ITIIII


 It's not the breaths you take, but the moments that take your breath away .... -B-




                                                                                Exhibit (if
   707                                                                        Pagefr2qf·
L-\1\ O~'VICES(W



                                                                               Cii RIS'IY L. LEE
                                                                                  Attomcy


                                                                              225 E. FIREII'EJ<:O LAf\1<:. STJ<:. 200
                                                                                   Af\CIIORAGJ<:, AlASKA 99503
                                                                                           M~ll\: 907.339.9931
                                                                                             FAX: 800.437.7901

                                                                                            777 M.~lf\ ST.. Sm. 600
                                                                                         FOR'I' WOR'I'II. Th:XAS 761 02
                                                                                          PHOI\J<:: 817.504.6075
                                                                                             FAX: 800.437.7901
                                               November 3, 2014
                                                                                      rlee@christyleelaw.com
                                                                                       www.christyleelaw.rom
Clerk ofthe Court
101 E Sam Rayburn Drive, Suite 200
Bonham, TX 75418

         Re:       Cause No. CV-14-41665
                   Pentex Foundation vs. Kenneth Vern Gibbs, eta!.

To Whom It May Concern:

Concerning Cause No. CV-14-41665, enclosed is Kenneth Gibbs and Candace Walton's
Response to Motion to Reconsider Order to Transfer Venue, and Motion for Sanctions,

Please file the original document with the Court, and return the file-marked copy to the firm in
the enclosed self-addressed, stamped mailer.

If you have any questions, please contact our office. Thank you for your assistance with this
matter.

                                               Very truly yours,
                                               LAW OFFICES OF CHRISTY LEE, P.C.




                                                Laura Hogins, Paralegal

Enclosures
1   l




                                                 NO. CV-14-41665

         PENTEX FOUNDATION,                               §
                       Plaintiff                          §
                                                          §
         ~                                                §
                                                          §
         KENNETH VERN GIBBS, CANDACE                      §
         GIBBS WALTON and HOWARD                          §
         KIRK GIBBS,    Defendants                        §              3361h JUDICIAL DISTRICT

                      REPLY TO RESPONSE TO MOTION TO RECONSIDER
                               ORDER TO TRANSFER VENUE

         TO THE HONORABLE JUDGE OF SAID COURT:

                COME NOW, Pentex Foundation, Plaintiff, and Joshua Unger, Trustee of

         the GBU Friends and Associates Trust, Intervenor, in the above entitled and

         numbered cause, file this Reply to the Response to the Motion to Reconsider the

         Order Granting the Defendants' Motion to Transfer Venue, and in support of the

         order shows:

                      MOVANTS MET AND EXCEEDED THE REQUIREMENT
                       OF PRIMA FACIE PROOF OF MANDATORY VENUE

                 1.      A party must establish mandatory venue by prima facie proof.         TEX.


         R. CIV. P. 87(3). All parties have made reference to the Contract and its

         $5,000,000 liquidated damages provision. Further, the uncontroverted venue facts

         establish that this is a lawsuit involving in excess of $1,000,000. Movants have

         established mandatory venue by prima facie proof. Spin Doctor Golf Inc. v.


         REPLY TO RESPONSE TO MOTION TO RECONSIDER ORDER TO TRANSFER VENUE ... PAGE I

        709
 Paymentech, L.P., 296 S.W.3d 354, 357, 359, teaches that this is sufficient:

         The agreement attached to the motion to transfer venue lists annual
         sales of over $1 ,000,000.00. Thus, on its face, it constitutes prima
         facie evidence of a major transaction within the meaning of section
         15.020(a).

         2.      The $5,000,000 liquidated damages clause is to be given no less

 effect. "The term 'liquidated damages' ordinarily refers to an unacceptable

 measure of damages that the parties stipulate in advance will be assessed in the

 event of a contract breach." Flores v. Millennium Interests, Ltd., 185 S.W.3d 427,

 431 (Tex. 2005). It allows contracting parties to protect themselves against the

 difficulty, uncertainty, and expenses involved when trying to ascertain actual

 damages. 1 "Given this desirable goal, it is well established that parties may

 stipulate at the time of contracting to a set damages amount for a breach of that

 contract, as long as the liquidated damages provision is not a penalty."

         3.      In addition to the stated liquidated damages of$5,000,000, the facts

 underlying this case reflect that it was clearly a major transaction. Attached hereto

 as Plaintiffs Exhibit 1 is a copy of a distribution check into the GWB Family and




               Gator Apple, LLC v. Apple Texas Restaurants, Inc., 2014 Tex. App. LEXIS 2539
 (Tex. App.- Dallas, Mar. 5, 2014), citing to Carrothers Canst. Co, L.L.C. v. City ofS.
 Hutchinson, 288 Kan. 743, 207 P.3d 231 (Kan. 2009)
 REPLY TO RESPONSE TO MOTION TO RECONSIDER ORDER TO TRANSFER VENUE ... PAGE 2

710
 Friends Trust for $2,037,803.50. 2 Attached hereto as Plaintiffs Exhibit 2 is the

 Affidavit of Fact of Howard Gibbs, who states that he has personally "received in

 excess of$1,000,000 as consideration from the [Contract]." Attached hereto as

 Plaintiffs Exhibit 3 is the Unsworn Statement Given Under Penalty of Perjury by

 Albert Barcroft, wherein he relates in paragraph 14, the same, that each of the

 Defendants have received well in excess of a million dollars. 3 Finally, the size of

 this matter is not really in dispute, as opposing counsel has represented as much in

 proceedings in Tarrant County:

         There is currently a $6.1 million offer on a piece of property, to pay in
         full, or a $8.5 million installment agreement over the next five years,
         that will come to the estate of Bert Gibbs. . . . There is a lot of
         money out there. My clients - my two clients own 25% of the estate.
         So if they own 25 percent, they are potentially going to get $2
         million. Al Barcroft owns a percentage and Howard Kirk Gibbs also
         owns- he owns 12.5 pecent. ... So we have a lot of assets for the
         estate of Bert Gibbs. 4




        2
                The GWB Family and Friends Trust was the business entity created pursuant to
 paragraph 6 of the Contract to received and distribute funds pursuant to the Contract terms.
         3
                 Submitted pursuant to TEx. CJv. PRAC. & REM. CODE§ 132.001.
        4
                An excerpt of this transcript is submitted as Plaintiff's Exhibit 5.

 REPLY TO RESPONSE TO MOTION TO RECONSIDER ORDER TO TRANSFER VENUE ... PAGE 3

711
                   DEFENDANTS' CONCEDE THAT THIS SUIT
                      INVOLVES A MAJOR TRANSACTION,
                  BY ATTEMPTING TO ASSERT AN EXCEPTION

         4.      Sensing the validity of the above, the Defendants seek to assert an

 exception to mandatory venue by attempting to assert that the Contract was

 unconscionable. It should be noted that- despite raising other affirmative

 defenses - avoidance of the contract on the basis of unenforceability has not been

 alleged as an affirmative defense, as would be required by Rule 94. 5 Nowhere

 does it appear in the Defendant's lengthy motion and answer on file with this



         5.      With respect to this alleged claim in avoidance of the Contract, they

 first claim that the Contract was one-sided. This is non-sense. Defendants' own

 responsive evidence, attached as Exhibit "C" to their Response, is an email from

 Albert Barcroft. Mr. Barcroft was Movants' predecessor in interest in the

 Contract. He relates in Defendant's Exhibit "C" that at the time of the Contract's

 inception, the three Gibbs siblings had already lost everything from their parents'

 estates. A final judgment was in place granting almost the entirety of the estate to


         5
                "In pleading to a preceding pleading, a party shall set forth affirmatively ... any
 other matter constituting an avoidance or affirmative defense." TEX. R. CIV. P. 94.
         6
               See, the Motion to Show Authority, Motion for Change ofVenue, Original
 Answer, Affirmative Defenses, Original Counterclaim, and Rule 13 Motion for Sanctions of
 Kenneth Vern Gibbs and Candace Walton Gibbs, filed on or about Aprill8, 2014.
 REPLY TO RESPONSE TO MOTION TO RECONSIDER ORDER TO TRANSFER VENUE ... PAGE 4


712
 Kip, a fourth Gibbs sibling, and granting a judgment against Candy, Howard and

 Ken in excess of$1,000,000. 7 The essence of the Contract was to try to recoup the

 lost estate. The goal was successful after five years of tedious work. The

 Defendants now receive funds from their parents' estates that they would have

 otherwise never seen. This Contract was imminently fair, given that it converted

 the proverbial sow's ear of an adverse judgment into the silk purse of recovery.

         6.      Next, the Defendants assert that Mr. Barcroft practiced law without a

 license, and after all these years the Contract is now not enforceable. This too is a

 fallacy. Again, referring to the Defendant's Exhibit C, Mr. Barcroft expressly

 denies being an attorney. The Contract itself states, in paragraph 3, subpart c, that

 "Barcroft, at his expense, will provide legal counsel by acquiring a licensed

 attorney .... " Mr. Barcroft specifically denies ever holding himself out as an

 attorney in Plaintiffs Exhibit 3, at paragraph 5. Importantly, Howard Gibbs

 reaffirms this:

        Al never stated that he was an attorney, and never offered to represent
        any of us. . . . I was at every meeting in which Candy and Ken met
        with Al, and Al never said he was an attorney or could represent us in
        any way. . . . There was no mention of Al' s education in anof the
        meetings or conversations leading to the execution of the [Contract].



         7
                A copy of this judgment is attached as Exhibit B to Plaintiffs Exhibit 2, the
 Affidavit of Fact of Howard Kirk Gibbs.
 REPLY TO RESPONSE TO MOTION TO RECONSrDER ORDER TO TRANSFER VENUE ... PAGE 5

713
                       JOSE,BENRY, BRANTL'-':                                      THE FROST NA~AL ElANK                         09374 ''
                                                                                        FORT WORTH, TX
                     MACLEAN Cf.ALViRADO, L.L.P.                                          30-9/1140
                             TRUST ACCOUNT
                           675 N. HENDERSON ST.
                           FORT WORTH, TX 76107                                                                        12/3/2008
                                (817) 877-3303
    ~~ @J,ag ~ tlw
I'.~.~.;
       C{f;w r{        GWB Family and Friends Trust                                                              I$    **2,037,8o3.so

~            Two Million Thirty-Seven· Thousand Eight Hundred Three and 50/100********U*"'******************'*********•••••u@offllaJ [Q    wg.
    ·.:::.


                     GWB Family and Friends Trust                                             JOSE, HENRY, BRANTLEY, MACLEAN & ALVARADO, LLP     ,




                   Devon Disbursement
                               u•oo g 3? t.n• a: n.~;oooo g 3•:                !;000 1.8 5 20n•

             JOSE, HENRY, BRANTLEY, I MACLEAN & ALVARADO, L.L.P./ TRUST ACCOUNT                                                  09374
                  GWB Family and Friends Trust                                                         12/3/2008
               3030 · Client Trust Liability                                                                             2,037,803.50




             Gibbs, Bert              Devon Disbursement                                                                 2,037,803.50

             JOSE, HENRY, BRANTLEY,/ MACLEAN & ALVARADO, L.L.P./ TRUST ACCOUNT
                                                                                                                                  09374
                  GWB Family and Friends Trust                                                         12/3/2008
               3030 · Client Trust Liability                                                                             2,037,803.50




                                                                 $ :·.· PLAINTIFFS .
                                                                 ~      EXHIBIT

                                                                 I        1




             Gibbs, Bert              Devon Disbursement
                                     AFFIDAVIT OF FACT

STATE OF TEXAS                        §
                                      §      Subscribed, Sworn, and Sealed
COUNTY OF TARRANT                     §

        I, Howard Kirk Gibbs ("Affiant"), being a defendant in a lawsuit in the 3361h District
Court of Fannin County, Texas, case number CV-14-41665; and being of sound mind, over age
of majority, competent to testify, and having a first hand knowledge of the facts contained
herein, hereby certify and declare that the following facts are true, correct and complete as stated,
and are so stated under the penalty of perjury.

1.     I metAl Barcroft ("AI") through a mutual acquaintance in October of2004. I had a legal
problem with a criminal charge of simulated legal process against me in Denton County. I was
having trouble getting an attorney to represent me because of the situation, and because I had no
money. Al immediately told me about John Skotnik ("John"), who he said was an attorney, and
a personal friend of his. AI said that he would try to get John to talk to me. He did arrange a
meeting, and John represented me in the County Court of Denton County, and was able to get the
sentence already against me greatly reduced. He did not charge me for what he did because I
had no money. I have always believed that AI paid John because he thought I had been unfairly
convicted, but I don't know that for sure.

2.       AI never said he was an attorney, and never offered to represent any of us. He never
charged us or asked for payment for any of the things he did other than his share of the contract
signed on May 10, 2005 by my brother Ken, my sister Candy Walton, myself, and AI, said
document entitled ''Contract for Sale of Land, Mineral Rights and Royalties, and all other
Assets or Monies Received from the Estate of Bert Hughes Gibbs, Kathryn G. Gibbs, and/or
the Mary L. Houseworth Trust(s) or 'The Kathryn Houseworth Gibbs Irrevocable Trust"'
("CSL") (See Exhibit "A"). After we signed the CSL, we were all in it together, and AI treated
us all like the partners we were. We all discussed and got a vote on everything we did. AI never
overrode any of us on any issue from the very beginning, even though he had the votes to do it.

3.      At first mention of something I was charged with in court, he told me about John. I was
at every meeting in which Candy and Ken met with Al, and Al never said he was an attorney or
could represent us in any way. After the CSL was signed, we all worked together and discussed
every issue as a team. Candy and I had as much input as Al did.

4.      There was no mention of Al's education in any of the meetings or conversations leading
up to the signing of the CSL. I would remember if he had said he was an attorney or had gone to
law school while we were negotiating a contract. He did not.



                                                                                       I
715                                                                                     I
5.       AI talked with us, and we explained about how our inheritance had been stolen from us.
At first, he did not believe what we told him. He stated that he would not get involved in the
whole mess, but that he would try to get John to help me on the criminal issue. But when he saw
how my criminal case was handled, he said he would talk to John to see if John would represent
us in the civil case if he got involved.

6.      AI would meet with us and take notes, usually at a fast food restaurant. Then he would
say that he would talk to John. A few days later, he would meet with us again. After a number
of these meetings, he said something to the effect of: "I must be crazy, but if you want to sell me
a share of whatever we can get back, I'll put up the money for John's legal fees and for the legal
research needed". We agreed and sold him 30% of everything that could be saved from our
inheritance. This is the title and first paragraph of the CSL that reflects the 30% payment:
                       Coatract for Sale of Land. Mineral Rigbu and Royalties.
            and all otber As5eh ur :'\tobiH Received from tbe Estate of lhn HugbH Gibbs.
            Kathryn G. Gibbs. aodlor the Mary 1.. HotJcsewortb Trust(s• or "The Katbrvn
                                lluusewurtb Gibbs lrrno<abfto Trust.,                ·


         This agreement between Albert Lynn Aarcroft, heremaftcr ·•Banroft''. and Kenneth
         Vem G1bbs, Candace Gibbs Walton. and How:~rd Ktrk Grbbs, hercinaiier collec!ively
         also "Gibbs... 1s a contract for sate of thirty ptrctnr 3Qo/. of aU land. m•n~ral rights,
         royalties, and any utber moolts or auets wbich Gibbs, or .any of the three mdh iduals
         rC'fcrred to collectively as "G1bbs" m this agreement. recetvc:s, or   IS   due, lrom this date
         forward, either collecuvely or mdivtdually. as a result of any inheritance or estate
         proceeds. or any mher property assets re1:c1vcd from any trust(SI or transfers from Bert
         Hughes G1bbs, Mary L Houseworth. andior K.a1hryn G. G1bhs at any ume. past, present,
         ur futun:; includmg. hlll not limited 10. !he foUowmg:

AI stated that the 21 silver dollars "sealed the deal", because he was going to get started
immediately, and he would be spending considerable money on the project. Although we each
got 7 silver dollars, it was clear that the consideration Al was going to provide was a way to
possibly get some of our inheritance back, and that it would involve a lot of money from him.
Even so, Ken stood up, shook Al' s hand, and stated, "I think we got the better deal on this",
referring to the silver dollars. We all laughed, but it was a true statement.

7.      AI provided everything he said he would, and the proof is in the fact that we were
ultimately successful. Anyone who claims we sold him 30% of our inheritance for 21 silver
dollars alone is a liar, a fool, or someone that does not know what actually happened. Anyone
who believes we would have gotten anything had AI not come along is just plain wrong. Not
only had Ken, Candy and I lost all inheritance from both of our parents, there was a seasoned
judgment against us of well over $1,000,000 (See Exhibit "B"). Anybody who wants to steal
Al's share negotiated in the CSL now is dishonest, ungrateful, and a thief.


716                     Page 2 of 4 of How"'d G;bb' Affidav;t dated   NM"'      4, 2014
8.      I have received in excess of $1,000,000 as consideration from the CSL. The 7 silver
dollars I received upon the signing of the CSL was the consideration paid by Al just to establish
the contract. Al never told Ken, Candy or me upon any of our numerous meetings that these 7
silver dollars each of us was paid was our only consideration. In fact, the excerpt under item #6
above states Al receives 30% of any of the estate assets recovered. The remaining 70% of assets
was the consideration Ken, Candy and myself would split up after Al received his 30%. This is
clearly seen on page 4, item #6 of the CSL, in which the division of recovered estate assets is
described as follows:
      the panaes, shall be agreed upon by all parttcs hereto. fhc dJVlsJon shall be divided on a
      basis of 30°/u   10   Barcroft ..B.J4~"o to Kenneth Vem GJbbs, 23.3J~·u to Candace \Vahon
      Gtbbs, and 23.33% to Howard Knk C>bbs.             <tl   each mstance of d1spt:TSal to the partccs.


Anyone that claims the only consideration I was to receive from the CSL transaction is 7 silver
dollars is delusional.

9.      After all parties signed the CSL, Al immediately brought John on board as the attorney,
hired Danny Unger ("Danny") to do legal research, and they all worked constantly on our estate
issues for the many months. Al worked on it for years.

10.    I don't know who actually wrote the CSL, and neither does Candy, because we had no
way to know. Neither of us was there when it was written, and Al never stated who wrote it. Al
would meet us, take notes, and then say he would talk to John and get back to us. I do know Al
brought a couple of contracts to us before the one we signed. I do know that Ken, Candy and I
added at least one provision to the last contract before we signed it, and that was section "h" of
the CSL. AI agreed to the addition.

11.     When Al brought the contract that we finally signed back to us, he told us to read it and
check it any way we wanted. If we agreed, he would meet us to sign it. We had sufficient time
to have it looked over by an attorney if we wanted to, but none of us had any money, and none of
us believed that our inheritance would ever be returned anyway. I am positive that had it not
been for Al, our inheritance would have never been returned and Ken, Candy and I would have
never been able to pay off the judgment signed by judge Don Windle. I have heard Candy say
the same thing many times.

12.    I have personally seen many e-mails written by Candy to Al, and I have personally heard
Candy tell Al on numerous occasions, that had it not been for him, none of us would have gotten
anything, and that he was the "only one who earned his money".

13.   Prior to the entry of Ms. Christy Lee into the process, Candy had never questioned the
CSL or Al in any way. She did question almost everything and everyone else, including every


717                         Pogo 3 of 4 of How"d Gibb' Affidovit dmod   N~    b" 4, 2014
                          '-'.·
attorney we ever had, and accused most of them of stealing from her. She stated many times that
AI was the only one who earned his money. None of that changed until Ms. Lee made her entry.

14.     In my opinion, the only thing "unconscionable" in this whole affair is Candy and Ken
trying to steal Al's share of the CSL when they and myself would have nothing without what he
did.

FURTHER, AFFIANT SAYETH NOT.

                      ACKNOWLEDGEMENT AND VERIFICATION

                §
THE STATE OF TEXAS
                §
COUNTYOFTARRANT §

        BEFORE ME, the undersigned authority, on this day personally appeared Howard Kirk
Gibbs, known to me to be the person whose name is subscribed to the foregoing affidavit, and,
after being administered the oath, acknowledged to me that he is a defendant in the therein
referenced lawsuit; and, that the foregoing "Affidavit of Fact" will be filed in that case or related
matters, and the facts stated therein are true, correct, and complete, and given as his own free act
and of his own personal knowledge under penalty of perjury.




                                                Howard Kirk Gibbs



SUBSCRIBED AND SWORN TO BEFORE ME this 51h day ofNovember, 2014.




718                   Page 4 of 4 of Howard Gibbs Affidavit dated November 4, 20 I 4
                                                                           Denton County
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                                        - · · - - - THIS PAGE tS PART OF THE tNSTRUMEHT ........,~•w
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                                                         *"""of ~OI'fll;o:;e   ts m"ahd il'd ullttllf«~lll ~ r.dtrill taw.


File fnformatkm!                                                                      RteOtd and Return To:
     Document Number 200$-61443
       Receipt Nv.mbef. 196064                                                            AlBA~CROr:T'
    Recorded oaterrtme. May 24, 2005 1 bt4A                                               P.O. SOX 188
                                                                                          TRENTON TX 7$490



                               rHE STA.TE OF TEXAS }
                               COUNTY OF OSNTON}
                               , ....... _ . , . . . ~-I'IU!(li;\-~Nrr!l!!lolf,~l)ll - -
                               ...,...-.-.Mif-~rii!Cl:OIIIOIOifl ... ~l~t.JtOfM!Wt~.'l'-.

                                   ~
                               County C1cH1t
                               Denton Collfll:y, n~x-
    719
                                    .......
                       Contract for Sale of tand, Mineral Rights and Royalties,
                                                                                ....,
            and all other Asseb or Monies Received from the Estate of Bert Hughes Gibbs.
            Kathryn G. Gibbs, and/or the 1\·tary L. Houseworth Trust(s) or "The Kathryn
                                Houseworth Gibbs Irrevocable Trust"


        This agreement between Albert Lynn Barcroft. hereinafter "Barcroft", and Kenneth
        Vern Gtbbs. Candace Gibbs Walton, and Howard Kirk Gtbbs, hereinafter collectively
        also ·•Gibbs", is a contract for sale of thirty percent 30% of all land, mineral rights,
        r()yalties, and any other monies or assets which              Gibbs~   or any of the three individuals
        referred to collectively as "Gtbbs" m this agreement) receives, or is due, from this date
        forward. either collectively or individually, as a result of any inheritance or estate
        proceeds, or any other property as$ets received from any trust(s) or transfers from Bert
        Hughes Gibbs, Mary L. Houseworth, andior Kathryn G. Gibbs at any time, past, present,
        or future~ includmg, but not limited tn, the following:

             a)    AU proceeds tl'om the Estate of Bert Hughes Gibbs. and/or,

              b) AU property and/or assets of any kind which are received as a result of any past or
                   future transference from Bert Hughes Gibbs, Kathry'tl G. Gibbs, or any trust to
                   wt).ich Gibbs. or any ofthe individuals refen·cd to collectively as "Gibbs" m this
                   agreement, are beneficiary; and/or,

              c) AB inheritance of any kind and in any fom1 by Gibbs, or any <)f the individuals
                   referre-d to collectively as "Gibbs" in this agreement; andlor;

             d) AU proceeds from any lawswt which currently exists. or may arise, because of, or
                  in connection with, lhe relationship(s) with Bert Hughes Gibbs, Kathi)TI G.
                  Gibbs, Kip Hugl1es Gibbs. Sandra Faye Gibbs, "The Mary L. Houseworth
                  Irrevocable Trust", "The Kathryn Houseworth Gibbs Irrevocable Trust", and any
                  other trust(s) to which G1bbs are beneficiary(ies) or trustee(s) r.n any fom1; and/or,

              e) All property and/or asset$ which may have been previously passed to them hy
                  Bert Hughes Gibbs, Kathryn G. Gibbs, "The Mary L. Houseworth Irrevocable
                  Trust", and/or ''The Kathryn House\l.·orth Gibbs Irrevocable Trust''; anti/or,

              f) All other property and/or assets passed     to Gibbs, or any of the individuals referred
                  to collecttvely as "Gibbs" in this agreement, from any source involving Ben
                  Hughes Gtbbs, Kathryn G. Gibbs, "The Kathryn Houseworth Gibbs Irrevocable
Con!l<l(:ltbrSalcofLand,M.nera!R1CI1fs.
Royaltu:s nnd Other Assets artdlor Mnmcs
                                                         I                  lmua!sof    dA.
                                                                            nll parttcs ~ ~- ~
                                                                                               u;t     A'"    IJ\
                                                                                                             .!Jit   .·~·· ,~·~,}it~lf'Jt::>'.
                                                                                                                 .··,$})/'·······<,0,:;; ..
720
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                                                                                                                  '<~~<;;fi···:~·::·.~;~~~·
                                                                                                                                           \1"\'.
                                                                                                                                             r:~:
                                                                                                                                            / ,<(~9 /
                                      '-"'                                   """"
              Tmst", and/or ''The Kathryn Houseworth Gibbs Irrevocable TrustH; or, any other
              trust(s) or business orgamzation(s) of any kind, which might be uncovered or
              discovered in the         future~   andlor,

         g) AH property and/or other assets in any trust or former trust; and, any property or
              other assets in any corporation, limited liability company, partnership(s), sole
              propnetorship(s). or any other business organization of any kind in which one or
              more of the Gibbs are owners, trustee(s) or beneficiary(Ies).
         h.) Specifically exempted from this agreement are any properties andlor other assets
               which are currently under the full control of Gibbs. or any of the individuals
               referred to collectively as "Gibbs" in tlns agreement; pwvidcd, however. that if
               any legal work is required to aid in the collectlon of said assets, or the sale or
               control of said property, then said property or other assets shall be subject to the
               terms. conditions, and considerations set forth within this agreement as part of the
               property and/or assets listed above, and shall have no exemption to the terms and
               considerations of this agreement. Also exempted from this agreement are any
               personal items that were passed to Gibbs from their father, which were not
               included m the divorce dtstribution between their mother and father.


    This sale of 30% of all land, property and other assets described herein above shalt
     be governed by tbe following terms, conditions, and considerations:


         l. Gibbs, or any of the individuals referred to collectively as "Gibbs" in this agreement,
         shall give their/his/her full cooperation to all efforts by Barcroft to collect any of the
         funds referred to in thts agreement. Said coopen1tton shall include, but not be lnnited to,
         providing necessary mfonnation and documentauon, being available to gwe testimony,
         and givmg full support to the overall eJfort of collecting funds and assets from the
         sources stated herein.


         2. Any party hereto shall have the right to order a complete inventory of all property and
         other assets described herein at any time, and aU panics agree to provide full cooperation
         to such an effort. Any costs shall be born by the party requesting the inventory.


Contract for Sale of Land, Mmeral R1ghrs.                   2          ll'ntlafs of     IJ.j.
~~l1e• ;md Other AS!Sets and/or M()ntes                                all parttcs    .JJ,f_.
      3. As full considcratio~arcroft agrees to provide, or has pr~ded, the following:

            a) Barcroft has paid to Gibbs a total of twenty~one (21) silver dollars minted by the
                 United States Mmt, photocopy of said coins attached hereto as Exhibit "A", and
                 mcorporatcd herein for all purposes as real consideration under this agreement,
                 and Gibbs hereby acknowledges receipt of same with this signing; and,

            b) Barcroft will provide his servicest knowledge and best efforts in the pursuit of all
                 av~itable     funds, property, and/or other assets from the sources stated herein; and,

            c) Barcroft" at hts expense; will provtdc legal counsel by acquiring a licensed
                 attorney for any reasonable and prudent actions necessary to the collecting of the
                  funds from the sources stated        herein~   however. should Gibbs, or any of the
                  indtviduat Gibbs, feel that their/his/her interests are not properly served by the
                  attorney Barcroft provides, that party wt\1 be responsible for the legal fees of any
                  other attomey(s) hired by Gibbs, or any individual Gibbs, to protect their/his/her
                  individual interests. In that event, it ts agreed by all parties hereto that the
                  attorney hired by Barcroft wtH represent only Barcroft in all future action(s).
                  Furthermore. it is specifically agreed that smd attorney hired by Barcroft will
                  represent only Barcroft should a dtspute arise between the parties hereto; and,
                  Gibbs, individually and     coll~tively,   agree not to claim conflict of interest should
                  said attorney represent Barcroft in a conflict between the parties hereto; and,
                  Gibbs. collectively and 1ndividua11y, hereby waive their/hislhcr right to claim
                  conflict of interest with regards to said attorney m such instance.

         4. It is understood and agreed that Gibbs may caned or nullify this contract Qn!y under
         the following conditions:

              a) lf Gibbs pays over to Barcroft the sum of five million dollars ($5,000,000.00 US)
                   in full, in addition to any money received prior to said one time payment, as
                   liquidated damages and full settlement of all consideration on Gibbs part.

               b.) If Barcroft voluntarily abandons tbe effort to collect the funds from the sources
                   stated herein; however. in this event, Barcroft shall retain all antoLmts already
                    receJved, and w1H continue to receive any future proceeds from any of the
                   property or other assets, and will retain his ownership interest in any property
Con traer for Sale of Land, Mmcral Rights,
R7~~ and Other Asset~; andior Momes
                                                         3                lnmals of  ~,4 V.'
                                                                          all partl!.l-'i ~
                                                                                                  A'
                                                                                              l:'f!..._
                                        '-'                                 .....,
                  which is covered by this agreement and has been brought into the control of
                  Gibbs, or is paying benefits of any kind at the time of Barcroft's abandonment; or,
                  which is brought mto the control of Gibbs~ or start paying benefits at a later date,
                  provided that said control or payments is a result of actions prior to Barcroft's
                   abandonment.


         5. If Barcrotl dies or becomes incapacitated, the contract will remain in force. and the
        assets whtch have been accessed and are paying at the t1me of Barcroft's death. or which
        are later accessed as a result of Barcroft's etTorts, \Vill go to his heirs and assigns.


         6. It is hereby agreed that there shall be a business organization, the exact type to be
         agreed upon at a later date1 created by the parties hereto; and~ that aU revenue of any kind
         received from any of the property and/or assets covered herein shall be deposited into a
         bank account in that entity's name) and that all expenses necessary to the continuation of
         revenue being paid to the parties hereto (i.e. property taxes on the royalties or property
         covered herein, and any necessary expenses such as \veil upkeep, etc.) shall be deducted
         .and paid as required before the 70/30 d1Vision agreed to in this contract. Barcroft shaH
         have a 50% vote in the operation of said busmess organization; and, the only function of
         said business organization shall be to factlitate the agreement in this contract.            Any
         monies paid out of said business organizationj other than the agreed upon split between
         the panies, shall be agreed upon by aH parties hereto. The division shall be divided on a
         basis of 30% to Barcroft. 23.34% to Kcnnelp Vern Gibbs, 23.33% to Candace Walton
         Gtbbs, and 23.33% to Howard Kirk Gibbs, at each instance of dispersal to the parties.
         Any part;r may demand a split of the assets of said business organization at any time.
          7. If either party should break the tenns of this agreement in any fashion, or attempt to
         render the contract invalid, in any way which would require legal action to correct or
         enforce, the party found at fault, or the party failing to prevail, shall pay aU legal
         expenses of any type for h1mselflberself, and for the prevaHing party.


          8,   Thts contract is written to comply with the laws of the State of Texas; and, any
         provision found by a court of competent ju:risdiction to be in non-compliance shaH be

Contract for Sale or Lan<l, Mtncral Rtgh~.
Royalucs. and Othllf A:>$els <~ndlor Momes
                                                       4                 lrnttal~vf
                                                                        all parttes
                                                                                        .a    //Of.
                                                                                      ~ ~ ..:::="c;Jr;.;!ll~
  723
        automattcally amended to comply with said laws in such a manner as to keep the original
        intent of the provision as closely in place as possible. In no event shaH any such findings
        on one provision affect any other provision wtthm the contract


         9. Notwithstanding any other provisiOn under the la\'11, it is expressly at,1feed that this
         contract shall be performable only in Fannin County. Texas~ and. any dispute(s) will he
        resolved tn the courts ofFannin County, Texas. The signing hereto of this contract by all
         part1es completes the sale of 30% of all property and assets of Gibbs to Barcron.


         I0. Thts agreement shall be binding on at1 heirs and assigns ofthe parties hereto.


         l L No lien(s) may be placed upon any of the property covered herein unless such lien(s)
         is/are agreed to by all parties hereto, reduced to writing, and signed by aU parties hereto
         before a notary public.


         12. All agreements between the parties hereto are contained in \vriting in this contract,
         and no verbal agreements shalt be deemed valid unless contained in writing herein. All
         amendments hereto must be in writing. and signed by aU parties before a notary pubhc.


          13. Albert Lynn             Barcroft~   Kenneth Vem Gibbs. Candace G1bbs Walton, and Howard
         Kirk Gibbs, the principal parties hereto. hereby agree h.) this contract 1n its entirety
         without reservation; and, each pledge never ro challenge the tenns; conditions, intentions,
         andJor constderations under this contract with their respective si~rning hereunder.




                                                                   till    ., .___,_.,__.
                                                                 ~Gibbs
Contract fl)r Sale of Land, Mtneral Rtghts,                5
R£1yalnes and Other A!:-si."IS and/or Monn:s
724
                                                     ACKNOWLEDGEMENT


          STATE OF TEXAS
                                                Subscribed, Sworn, and Sealed
          COUNTY OF COLLIN

                 On Uus 1011> day of May in the year 2005, Albert Lynn Barcroft~ known to me, d1d
          personally appear before me; and, after taking the oath, deposes and says that he 1s the man who
          executed the foregomg instrument; and, further stated that he executed the same as hts free and
          infonned act and deed for the purposes stated therem. and with a full understanding of the scope of
          the provisions contained therein; nnd, that he a   to a ide by all said provisions.

                                                                                            ---·-~----   ...




           Subscribed and sworn 10 before me tf1is 10111 day of May in the year 2005.
                                                                                    '


                                                      No&fu~~~--
                                                Subscribed, Sworn, and Sealed
           COUNTY OF COLLJN
                  On this 10111 day of May in the year 2005> Kenneth 'Vern Gibbs, known to me. did
           personally appear before me; and, after taking the oath, deposes and says that he is the man who
           executed the foregoing instrument; and, further stated that he executed the same as his free and
           informed act and deed for the purposes stated therein. and wHh a full understanding of the scope or
           the provisions contained therein; and, that he agrees to abide by an said provisions.


                                                     ~11~-~
                                                     Kenneth Vern Gibbs

           Subscribed and sworn to before me this lOth day of May in the year 2005.
                                                                                '




 Cont1x1 for Sale .,r Land, Mmrnl R1ghts,
 l<oy11111es and Other Ass.ets and.lor Monrcs




725
        STATE OF TEXAS
                                             Subscribed, Sworn~ and Sealed
        COUNTY OF COLLIN

                On this tom day of May in the year 2005. Candace Gibbs Walton, known to me, did
        persona11y appear before me~ and, after taking the oath, deposes and says that she is the woman who
        executed the foregoing instrument; and, further stated that she executed the same as her free and
        infonned act and deed for the purposes stated therein, and with a full understanding of the scope of
        the provisiOns contained therein; and, that she agrees to abide by all said provisions.


                                                      11. ~             11-IAA   wd~
                                                   -~-~                                  ~-~--­
                                                    Candace Gibbs Walton

        Subscribed and sworn to before me this \0111 day of May in the year 2005.
                                                                                     '
                                                    -· ·~\LR_"()Nw\L) ·-
                                                    N~y·ln and for the State~~

                                             Subscribed. Sworn. and Sealed
        COUNTY OF COLI.lN

                On this 10111 day of May in the year 2005, Howard Kirk Gibbs, known to me, did
         personally appear before me; and, after taking the oath, deposes and says that he IS the man who
         executed the foregoing instrument; and, further stated that be executed the same as his free and
         mformed act and deed for the purposes stated therein, and with a full understanding of the scope of
         the provisions contained therein; and, that he agrees to abide by all said provisions.



                                                      JJA
                                                    &KirkGibbs
                                                                    -~--"-----~----"--
         Subscribed and swo_m to before me th1s 10'11 day of May in the year 2005.

 ..
                                                     ~~~~~··    •     ·>--.-
                                                    Notary in and for the Stal
                                                           T ru                  f
                                                                                     ' - - ·




Contract Cor Sale of Land, Mineral R1gbts,                  7
Royalt•es and Olher Assets and/or Momes




726
      /IJ· .IS 1ft ,e.   c/t., F 7
 ~..p. 0- hx t?P
    Tf<_. ll vt -ft> "~. T:e X 4. .s
                                     7 s-tjfc> {_,.t.i'J)
                                      &_t,,J,;.I F~.;r·/    ~ tiJt t~ WJ




727
MAR-29-2005 01:57PM                                                                                                           P.01



                                                      ABSTRACT OF JUDGMENT
                                                      CAUSE NO. GA-:lOOl·lH-02

                                                                              A11'0RNEY FOR PLAINTIFF
                                                                              COLLIST£lt, LAWRENCE C.
                                                                              P.o. Box 918
                                                                              Dencon, Tx. 76202
      TIIESTATEOFTEXAS                                          t
      COUNTY 0, '>E1'170N                                       I
               I, Cynthia Mitchell, CLeRK of the County Courtl of Denton COunty, Te"u, do hereby certify that in the Probate
      Court or Denton County, Toxas, in I certain suit heu(i In said caurt, wherein:
                                                               .
                            Kip H. Gibbs, AS NEXT FRIEND FOR Kathryn Hotlfeworth Clbb-,'PI•Intltf(t)
                                                                     VI,
                                              Candace Gibbs Walton, E'r. AL. Dcfondent(s)

      Plalntlffrecoveredjud&mcnt against the~ following Defendant(a):
      Canwe Gibbs Welton                                    DRIVER'S LICENSE:                  LTNKNOWN
      t 13 South Melanie Street                                    BIRTH DATE.:                UNKNOWN
      !Ule. Tx                                                                  $.S,#          UNXNOWN
      kenneth Olbbs                                           DRJV:BR'S LICENSE:               UNKNOWN
      1200 Whitley Road                                           BIRTH DATE:                  UNKNOWN
      Kollet, Tx 76248                                                         s.s.s           UNLNOWN
      Howard Kirk Olbbs                                     DRIVER'S LICENSE:                   UNKNOWN
      P.o. Box222                                                BIRTH DATE:                    UNKNOWN
      HtUlet, TX 760~2                                                   S.S.#:                 U'NNNOWN
      Bert Hughes Gibbs                                     DRIVER'S LICENSe:                   UNKNOWN
      P.O. Box444                                                   BIR.ntDATE:                 UNKNOWN
      Hulet, TX 760~2                                                        $.5,#:             UNKNOWN

      On lOth day of January, 2005, for:
         Jolatty a11d Severally
              $ 911.252.87; as the ptlncipal amount due;
              Pro-judgment int~rest Oh that sum at the rate ofS%, in th~ sum of$ 149, S46.34 [1,198 days (date of tiling until
              date judgment was signed) at $ 124.83 por day]
              Post-Judgment interest in the total sum at the annual rate of five and !4 percent: and
              $ 66.25; as costs of court; and
       Said Judgment Is of ~ord in the Probate C011tt, Donton County. Texas. satd judgment is entitled to the following credits to-
      wit: NONE
       GIVEN UNDER MY HAND AND SEAL OF OFfiCE, at Dc:Dton, Texas. Wednesday, March 09




       THE STATE 01 TEXAS
       COUNTY OF~~----~
                I,                  , Couacy Clerk of                        Co11nty, do hereby certify tbatthlt Abitnct oi.J"d1meat wu
       nw   tor record In ID)' oflkc tfle            day of                   200_, at _o'clock --- .M'I llld Wd lmmedlattl)'
       rtcorded the ~- day of                          200__. at _o'cloctc _ .M., In the Judpent Rteords of said Couty hi Volume
       _____, Pace _ , aftd wtl al10 at th1 Sllllll tlmo eatered 11pon the lndeit to lild Judcmeat Reconb, sbowlnl tbt Ramee of QCh
       Plalndflb) iad ncb .beftndint(a) fn aald JlldJmeat, •~td the aumben oftht paa11 ofrllt Book upo11 wbleh uld abstract Ia recorded.
                 WITNI'.SSU MV HANJ) AND SEAL OF OFFICI., tllll _ _ day or _ _-~100_.
                                                    ----------~County
                                                    l!!!r.:" _ _ _ _ _ _ _ _ _ _ couaty, Ca.rtc
                                                                                         Tuu
                                                    Si1 __________.n.puty cterk
01/25/2005   15:05                                                GIBBS R_E__R   ,~                          PAGE   01




     COPY                                      CAUSE NO. GA~2001-196

     IN THE MATIER OF                                         §          IN THE PROBA1'J\:fCOURT''II
                                                                                         . . .... .. .._..,;
                                                                                                       \.,
     THE GUARDIANSIDP                                         §
                                                              §
     KATHRYN HOUSEWORTH GIBBS,                                §
     AS INCAPACITATED PERSON                                  §


                                             CAUSE NO. GA-lOOl-196-02

     KIP H. GIBBS, AS NEXT FRIEND FOR §                                  IN THE PROBATE COURT
     KATHRYN HOUSEWORTH GmBS          §
                                                              §
                                                              §          OF
     vs.                                                      §
                                                              §
     CANDACE GIBBS WALTON, ET AL.                             §          DENTON COUNTY, TEXAS

                                                 FINAL JUDGMENT

             On September 13, 2004, this case was called for trial. Plaintiff, Kip H. Gibbs, in his

     capacities as next friend for Kathryn Houseworth Gibbs and co~guardian of the estate of Kathryn

     Houseworth Gibbs, appeared in person and through his attorney and announced ready for trial.

     Defendants, Candace Gibbs Walton, Howard Kirk Gibbs, KeMeth Vem Gibbs, and Bert Hughes
                                                                                                                     ~-


     Gibbs, though duly notified, failed to appear.

             All matters, legal and factual, were submitted to the court for its detennination. The court

     heard the evidence and argument of counsel and announced its decision for plaintiff.

             The court orally rendered judgment for plaintiff on September 13, 2004. This written

     judgment memorializes that rendition.

             The court finds that:

             1.      All defendants are properly within the jurisdiction of the court;




     Paget of9 •   FINAL JUDGMENT
                   (Gibbs. Kat/Final Judgment)[lcc;O 11905]




 7
01/26/2005     15:05                                          GIBBS R_E __R     ~                     PAGE     02




                2.       The court has appropriate jurisdiction under the Texas Trust Code, Texas Probate

      Code, and the Texas Govenunent Code;

                3.       All necessary citations have been issued;

               4.        Defendants each had notice of the setting for trial but did not attend;

                5.      Plaintiff provided evidence proving liability, causation, and damages for all causes
      of actions pleaded;

               6.       Bert Hughes Gibbs (''Bert") was the husband of Kathryn Houseworth Gibbs

      ("Kathryn''), and Candace Gibbs Walton (''Candy"), Kenneth Vern Gibbs ("Kenneth"), and

      Howard Kirk Gibbs ("Howard Kirk") were her children;

               7.       On July 17, 1990, Kathryn's mother, Mary L. Houseworth ("MaryH), created both

      the Mary L. Houseworth Revocable Trust ("Houseworth Trust") and the Kathryn Houseworth

      Gibbs Irrevocable Trust ("Gibbs Trust");

               8.       On February 7, 1991, Mary signed the First Amendment to the Mary L.

      Houseworth Revocable Trust which added Candy as a co-trustee with Mary, required joint action

      between Mary and Candy, and prohibited unilateral action by Candy as co-trustee;                          ....
               9.       Upon the death of Mary, the Houseworth Trust, by its own terms, converted to an

      irrevocable trust and the assets of the Houseworth Trust became assets of the Gibbs Trust and

      Kathryn was to receive a mandatory :monthly distribution of not less than $2,000.00 nor more

      than $3,000.00; further, the overall purpose of the trusts were so that Kathryn shall be able to live

      in a manner consistent with her 1990 standard of living;

                10.     Compliance with the purpose and intent of the trusts would be defeated by

      maintaining the cun-ent level of monthly distributions to Kathryn;



      Page: 2 of9 •    FINALJUDGM~I'll'
                      (Oibbs.Kat/Fina1Judgment)(lce;01190S]




730
01/25/2005   15:05        21444'-''38                       GIBBS R_E __ R   ..._t               PAGE     03




             11.      The Houseworth Trust provides that all benefits of the trust are held for Kathryn

     and that her children, Candy, KeMeth, Howard Kirk, and Kip Hughes Gibbs ("Kip'') are the
     beneficiaries after Kathryn's death;

             12.     The Gibbs Trust designated Mary, Kathryn, Candy, Kenneth, Howard Kirk, and

     Kip as beneficiaries and that~til income was payable to the Houseworth Trust during Mary's

     lifetime, provided that distributions could be made to any beneficiary for health emergencies, and

     stated that Kathryn and any three of the four children could direct income or principal to be

     distributed directly to Kathryn;

             13.     Mary died testate in 1991 ;

             14.     Kathryn is incapable of protecting her own interests and from the importuning of

     her husband and children and will sign ahnost anything for anyone who asks her to do so;

             15.     On and after August 1998, after being terrorized about impending Y2K disasters

     and the importuning of the defendants, Kathryn signed blanket authorizations, later signed by

     Candy, Kenneth, and Howard Kirk, withdrawing $1,015,000.00 from the Gibbs Trust ("Removed

    Funds");                                                                                               ~   •'



             16.     Kathryn was told by defendants that the Removed Funds were to provide for

    staples for the family during the impending crisis;

             17.     The Removed Funds were controlled and/or spent by the defendants;

             18.     $701,021.00 of gold coins and junk metal were purchased with the Removed

    Funds. The balance of the Removed Funds were either !>pent by or distributed to the defendants;

             19.     Plaintiff received $36,200.00 from the Removed Funds which was subsequently

    spent for Kathryn's benefit or deposited with the court;



                   FINAL JUDQ~EN'f
                   (Gibbs.K.at1Final1udgment)[lcc;otl90S]




 7~
01/26/2005      15:05      21444'-'98                       GIBBS R_E __R    \wl                    PAGE     04
  .'




                20.     Plaintiff did not participate wi.th the defendants in the withdrawal ofthe Removed

       Funds;

                21.     Plaintiff did not consent to the withdrawal of the Removed Funds;

                22.     Plaintiff affmnatively demonstrated to defendants of his disagreement with the

       withdrawal of the Removed Funds;

                23.     Plaintiff demanded that the Removed Funds be accounted for and returned to the

       Gibbs Trust after it was evident that Y2K did not pose any society ending problems;

                24.     Defendants openly and steadfastly refused to comply with plaintiff's demand;

                25.     Each defendant was in a fiduciary relationship with Kathryn Houseworth Gibbs

       ("Kathryn'1), or, alternatively, a relationship of special trust and confidence giving rise to

       fiduciary duties;

                26.     Each defendant is fully accountable to Kathryn for the Removed Funds;

                27.     Each defendant breached their respective fiduciary obligation to Kathryn;

                28.     The defendants' decision to purchase the gold coins and junk metal was an

       inadvisable, imprudent and improper investment and did not meet any standard of wise or                ....
       prudent fiduciary management;

                29.     Plaintiff recovered from defendants (i) all of the gold coins and junk metal

       purchased with the Removed Funds, and (ii) the amount of $225,873.03.

                30.     Plaintiff was unable to account for $88,141.97 of the Removed Funds;

                31.     Plaintiff, under court order, sold the gold coins and junk metal for $387,419.03;

       the sale :resulted in a net loss of $313,601.97 to the Gibbs Trust;
01/26/2005    15:05       21444.._,:38                       GIBBS R_E__ R   ·~                   PAGE     05




             32.      The method of resale of the gold coins, approved by court order. was reasonably

     calculated, and diligently pursued, to obtain the highest possible resale cost in value on the gold
     coins and other precious metals;

             33.      Defendants, primarily Howard Kirk Gibbs, negligently or intention~lly failed to

     comply with federal tax law which resulted in the penalties and interest being incw-red by the
     Houseworth Trust and the Gibbs Trust;

             34.      The wrongful withdrawal of the Removed Funds directly caused federal income

    tax penalties and interest to be incurred in the amount of $143,843.81 which was subsequently
    paid by the Houseworth Trust and the Gibbs Trust;

             35.      The attorney fees in the amount of $115,665.12 incurred by plaintiff in his

    capacity as next friend of Kathryn Gibbs and as co-guardian of the estate of Kathryn Houseworth

    Gibbs in an effort to recover the Removed Funds and to recover damages incurred by the

    Houseworth Trust and the Gibbs Trust as a result of defendants' actions       were reasonable and

    necessary;

             36.      The plainti:ffh&incurred actual damages in the amount of$661,252.87;                 ;.,.



             37.      Five percent is the COITect prejudgment interest rate applicable under the Texas

    Finance Code;

             38.      The conduct of one, some, or all, of the defendants at various stages of this

    litigation has been recalcitrant, obstreperous, abusive, vexatious, dilatory, and engaged in with

    intentional malice, or alternatively, with a reckless disregard for the rights of the trust

    beneficiary, Kathryn; has been engaged in for no good-faith purpose; has been engaged in bad

    faith during the course of this Htigation; and has included the hiring and firing of four separate

    attorneys and multiple dilatory motions;

    PageS of9 •    FIN"L .JUDGMENT
                   (Gibbs.Kat!Final Judgment)[lcc;Ot 1905]




  7®
01/25/2005    15:05                                        GIBBS R_E __ R   -....,                   PAGE   05




             39.      The punitive damage award of $250,000.00 is based on the underlying withdrawal

     of $1,015,000.00, the loss of use of the Removed Funds, and the actual damages and bears a

    direct and rational relationship to actual damages incurred in this case and is reasonably

    calculated to accomplish the legitimate pwposes of exemplary dantlges that is act as a deterrent

    to the same or similar conduct by others in the future and to punish wrongdoers;

             40.      The majority of the activity by defendants in this case cannot be excused as

    nonnal defensive tactics or advocacy or litigation proce~s but an abuse of the system;

             41.      Defendants refused continuously and throughout the course of the litigation to

    disclose any meaningful financial infonnation, documents, papers, exhibits, or other matters,

    even though proper request for the same was made;

             42.      There is no way in which any one defendant can be excused or set aside or: limited

    or exculpated from the conduct of the other defendants;

             43.      Defendants conduct is so inextricably intertwined that the court is unable to

    segregate any element of damages, and hence, makes all damages, including those that are

    exemplary, joint and several;                                                                           o>.


             44.    The purposes and intentions expressed by Mary in the creation of both the

    Houseworth Trust and the Gibbs Trust have been frustrated through the conduct of defendants,

    and that because of the defendants • conduct of defendants, three of whom are contingent trust

    beneficiaries, that the court must modifY the trusts to exclude any possibility of control by them

    with respect to the trusts or their administration or any ability to cause the withdrawal of funds;

             45.    The conduct of defendants commencing with the withdrawal of the funds from the

    trusts and continuing throughout the coun;e of this litigation was undertaken with the specific

    malicious intent to either defraud or harm or permanently deprive the primary trust beneficiary,

    Page 6 of9-    FINALJUDOMEI'IT
    ~ibbo.KoUF;"' '"''"'""')[!~'" l90S)



 73~
01/26/2005     15:05                                           GIBBS R_E__R       .._,.             PAGE     07




     Kathryn, of property rightfully belonging to her and entitlements to income rightfully belonging

     to her and that there was no intention at any time to make restitution of such property to the

     primary trust beneficiary, Kathryn, and that said conduct was also committed with a reckless

     disregard for the rights and well·being of Kathryn;

               46.       The actions of defendants operate as a forfeiture of their interest in both the

     Houseworth Trust and the Gibbs Trust as contingent beneficiaries, or alternatively, if this finding

     is later determined to not be consistent with law in that the defendants conduct does not justify a

     forfeiture, the court finds that such actions by defendants was of such reckless disregard and with

     such malicious intent and caused such harm and damage to plaintiff, that the court orders a

     surcharge against the interest of those contingent beneficiaries equal to their pro rata share of the

     judgment.

               The court therefore renders judgment in favor of plaintiff and against defendants and

     ORDERS that:

               l.        The plaintiff recover from defendants, Candace Gibbs Walton, Kenneth Vern

     Gibbs, Howard Kirk Gibbs, and Bert Hughes Gibbs, the sum of $911,252.87, prejudgment                         ••

     interest on that sum at the annual rate of five percent, in the sum of $149,546.34 [1.198 days

     (date of filing until date judgment was signed) at $124.83 per day], post-judgment interest in the

     total   ~urn   at the annual rate offive and 1/4 percent, and court costs;

               2.        This judgment is joint and several;

               3.        The Houseworth Trust and the Gibbs Trust are each modified to:

                                 a.      specifically eliminate, terminate, cancel, and forever hold for

                         naught any right. power, or authority previously vested in Candace Gibbs Walton,

                         Kenneth Vern Gibbs, or Howard Kirk Gibbs, or, to the extent any ever existed or
01/25/2005       15:05                                        GIBBS R_E__R     ..._,                  PAGE     08




                         derivatively could exist, Bert Hughes Gibbs, with regard to any withdrawal of

                         funds;

                                    b.    specifically eliminate, terminate, cancel, and forever hold for

                         naught any right, power, or authority previously vested in Candace Gibbs Walton,

                         Kenneth Vern Gibbs, or Howard Kirk Gibbs, or, to the extent any ever existed or

                         derivatively could exist, Bert Hughes Gibbs, over the trust assets or the duly

                         appointed and acting trustee or successor trustee;

                                    c.    remove Candace Gibbs Walton, Kenneth Vern Gibbs, and Howard

                         Kirk Gibbs as contingent beneficiaries;

                                    d.    specifically eliminate the requirement that a majority of the

                         beneficiaries could change the trustee and plaintiff is solely allow to determine

                         when and if a trustee should be removed and who should be appointed successor

                         trustee;

                                    e.    eliminate distributions to any contingent beneficiaries during the

                         lifetime of Kathryn Houseworth Gibbs;

                                    f.    eliminate the requirement that Candace Gibbs Walton can be

                         named as successor trustee; and

                                    g.    to allow monthly expenditures to Kathryn Houseworth Gibbs to

                         exceed the maximum guideline of $3,000.00 if by doing so meets the general

                         overall purposes of the trusts.

                4.       Texas Bank is appointed trustee of the Houseworth Trust and the Gibbs Trust.

                5.       Any escheated funds property belonging to either the Houseworth Trust or the

     Gibbs Trust can be recovered by any trustee or successor trustee.

     Page 8   of 9 -   FINAL JtJDGMIENT
     ~ (Glbbo.Koi/Fl"t ludgma,.Xl";Ot 190ll




 73~
01/26/2005    15:05                                                GIBBS R_E __ R   ....._,           PAGE   0'3




             All other relief not granted is denied.

             This judgment is fmal, disposes of all claims and all parties, and is appealable.

             The court orders execution to issue for this judgment.

             Signed on Januar;~os.
                                  ·'
                             .....,_...   fJW_

                                                                                     /     '
                                                             By:               . . ......_
                                                                                   .
                                                                   Honorable Don • Windle,
                                                                   Probate Judge~
                                                                   Probate Court of Denton County, Te:xas




                                                                                                              "




    Page 9 of9 •   FINAL JUDGMENT
                   (Gibbs.l(at/Final Judgment)[lec;OI190'J




7
                        UNSWORN STATEMENT GIVEN UNDER PENALTY OF PERJURY


         I, Albert Lynn Barcroft, Affiant, being of sound mind, over age of majority, competent to testify, and
         having a firsthand knowledge of the facts contained herein, hereby certify and declare that the following
         facts are true, correct and complete as stated, and are so stated under the penalty of perjury:

             1. 1 signed a Contract ("CSL") with Kenneth Vern Gibbs, Candace Gibbs Walton and Howard
                  Kirk Gibbs, herein collectively "Gibbs", on May lO, 2005.

             2. Through the CSL, I purchased 30% of everything that could be recovered from the estates of
                  the Gibbs' parents, Bert Hughes Gibbs and Kathryn Houseworth Gibbs.

             3. At the point when the CSL was signed, the Gibbs had lost everything, final judgments against
                  them were almost a year old, there was an Abstract of Judgment against each of them for over
                  a million dollars, they had no money, no attorney would even talk to them, and they had no
                  hope that they could ever recover.
             4. As a direct result of the CSL, the judgments against them were removed, they regained a full
                  share of their parents' estate, and their lives were returned to normal. Save for the CSL, none
                  of this would have happened.
             5. I did not claim to be an attorney, I did not claim I had attended law school, and I did not tell the
                  Gibbs I could represent them in any manner.          I did not ever ask for, expect or receive
                  compensation for anything from the Gibbs other than as consideration under the CSL. I did not
                  try to induce the Gibbs in any way other than to say I would put up money, hire an attorney,
                  and work hard to get some of their inheritance back. I have many e-mails from Candace
                  Walton, the last one coming just after Ms. Lee was hired, thanking me for saving their
                  inheritance. Ms. Lee was able to change all ofthat, and replace it with charges of wrongdoing.
             6.   I did not draft the CSL without assistance. Contrary to her statement under oath, Candace
                  Walton had no way to know who drafted the CSL, although she swore to that fact.
             7. Defendants Candace Walton and Kenneth Gibbs stated as fact that "John Skotnik drafted the
                  CSL" in their original answer in the 336th District Court of Fannin County, Texas, case number
                  cv-14-41665 ("lawsuit") when they were attempting to disqualify John Skotnik.
             8. Defendants Candace Walton and Kenneth Gibbs stated as fact that "it is an established fact
                  that Albert drafted the CSL" in their Response to Motion for Summary Judgment in the
                  same lawsuit when the wanted to say Albert Barcroft practiced law without a license.
             9. There was no discovery from either John Skotnik or Albert Barcroft between the two
                  "statements of fact" that could have resulted in any fact as to who drafted the CSL being
                  established.
             10. Candace Walton and Kenneth Gibbs have shown a strong propensity throughout these
                  proceedings and those in a related case in Tarrant County Probate Court #2, case number 2005-
                  0000126-2-D, to state as fact that which is not; and, to change their stated facts to me~et
                                                                                                          their
                  instant needs.
                                                             '     PLAINTIFF'S
                                                             ~       EXHIBIT                                                      "V   '1~~~.~~~!!.t'.,,
                                                             ~                                                               \]t.~ ,~             ~~,v~,

      738                                                    ~         J                                         .      :0,.':;   i                  \=~\
------------------·-------·-·--- ..                          f                         --------------------~~
                                                                                                                       {~i                            r:,_s;
                                                                                                                       <,?).\              ~l
                                                                                                                        \~~:}>· ',.        v    J / r,J;\ .
                                                                                                                             . tfJ~icC" /
      11. Everything I did leading up to the signing of the CSL was in business negotiations on my own
         behalf. I did not give legal advice, I did not represent anybody other than myself or say I
         could, I did not claim to have attended law school, I did not expect, ask for or receive any
         compensation from the Gibbs other than later as consideration under the CSL, and I did not tell
         the Gibbs not to get legal advice before they signed the CSL. None of these charges were
         made until over 8 years after the fact when Christy Lee became attorney for Candace Walton
         and Kenneth Gibbs, and started creating baseless allegations and lies to support those
         allegations. There is absolutely no evidence that any such charges were ever levied in the pre-
         Lee era, because said allegations were absolutely contrived after Ms. Lee took over, and are
         false, and the Gibbs did not used to be liars.
      12. After the signing of the CSL, I immediately hired John Skotnik as attorney to represent the
         Gibbs' interest. John Skotnik had already represented Howard Gibbs in a criminal matter,
         showing that I did not hold myself out as an attorney or as someone who could represent
         another party.
      13. The false allegation that the CSL was unconscionable because I was practicing Jaw without a
          license in order to induce the Gibbs into signing the CSL, and because of the consideration
         given the Gibbs under the CSL is a recent invention of Ms. Lee. The allegation was not made
          in the Gibbs Original Answer, Counterclaim or Affinnative Defense, nor in any amendments to
         that answer. Neither was the allegation made in the Original Gibbs Tarrant County lawsuit
          filed in the Probate Court Number 2 of Tarrant County, case number 2005-0000 126-2-D,
          which addresses virtually the same issues as the case in Fannin County. After almost a decade
         and numerous filings in the Fannin County and Tarrant County courts, the Gibbs have
         apparently just discovered that they were deceived by me while "practicing law without a
         license" into signing an unconscionable contract. That revelation comes strangely at a time
         when all their other false allegations appear to be falling short.
      14. As a direct result of the CSL, each of the Gibbs has received well in excess of a million dollars,
         each has had a final judgment against them of over a million dollars retired, and each stands to
         receive several more million dollars as was pointed out by Ms. Lee in a hearing in the Tarrant
         County lawsuit when Ms. Lee stated, "· • · Your Honor, you have to keep in mind, even
         though it does look like these are assets that have been transferred out of the estate, there are
         assets that aren't transferred out of the estate.··There currently is a $6.1 million offer on a
         piece of property, to pay in full, or a $8.5 million installment agreement over the next five
         years, that will come to the estate of Bert Gibbs· · ·There is a lot of money out there. My
         clients •• my two clients own 25 percent of the estate. So      if they own 25 percent, they are
         potentially going to get $2 million. AI Barcroft owns a percentage and Howard Kirk Gibbs
         also owns - he owns 12.5 percent...So we have a lot of assets for the estate of Bert Gibbs."
         Every single asset that Ms. Lee refers to in this statement would not belong to the Gibbs save
         for the CSL and the work and money that I invested into the CSL as consideration.




739
      15. Save for Ms. Lee's false allegations and attempts to get her "share of the pie", it is my firm
          belief that there would be no lawsuit.

  FURTHER, AFFIANT SAYETH NOT.

                                             VERIFICATION

  My name is Albert Lynn Barcroft, my date of birth is August 20, 1946, and my address is Rancho
  Las Brisas, San Marcos, Livingston, lzabal, Guatemala, Central America; and, I declare under
  Penalty of Perjury that the foregoing statements are true and correct, and not intended to mislead.

  Executed at San Marcos, Livingston, Izabal, Guatemala on the 4th day of November, 2014.




740
              ·--···   .




                                                                                  CAUSE No.       GA 2001-00196

                            IN RE GUARDIANSHIP OF                                                  )              INTHEPROBATECOURT

                            ESTATE OF KATHRYN H. GIBBS,                                            )                    OF

                            AN INCAPACITATED PERSON                                                )              DENTON COUNTY, TEXAS

                                                                                                  AND

                                                                                      CAUSE No.        05-126-2

                            IN RE: THE ESTATE OF                                                   §                INTHEPROBATECOURT
                                                                                                   §
                            BERT HUGHES GIBBS,                                                     §                      NO. TWO OF
                                                                                                   §
                            DECEASED                                                               §                TARRANT COUNTY, TEXAS


                                                                        FAMILY SETTLEMENT AGREEMENT

                                     TillS FAMILY SETTLEMENT AGREEMENT (this "Agreement" or ~'FSA") is
                            mad~::  and entered into by and among the following persons, both .individually and in the
                           · fiduciary capacities described below:
                                                               .                                                               .
                                        I.           Kenneth Vern Gibbs ("Ken"), Individually and as Independent Executor of the
                                                     Estate of Bert Gibbs, Deceased and in all capacities listed under his signature line
                                                     below;

                                        2.           Candace Gibbs Walton ("Candy"), Individually and in all capacities listed under
                                                     her signature line below;

                                        3.        · Kip Hughes Gibbs ("Kip") , Individually and in all capacities listed under his
                                                    signature line below;

      PLAINTIFFS                         4.          Howard Kirk Gibbs ("Howard Kirk"), Individually and in all capacities listed           ',

'II     EXHIBIT
          ~
                                         5.
                                                     under his signature line below;

                                                     Kathryn Houseworth Gibbs ("Kathryn") , Individually and in all capacities listed
                                                     under her signature line below;

                                         6.          Sandra Faye Gibbs ("Sandra'') , Individually and in all capacities listed under her
                                                     signature line below;



                                                                                      flu/
            k"              FAMILY SE'ITLEMENT AGREEMENT- Page 1
                       .d:'ulases\Gilibs'>J;SA 8'25'08-linal                          {\      b
         / _!;::./                                                                     KVG             CGW




  L-··· ---···-·-·· • -·---··- -·- •·····             ------·-     ---····------~·~·- - - ·
    •




         · 3.25      Representations. The Partie~ to this Agreement make t}J.e following representations to
                     such other Parties:

                       (a)    The representing Party is legally competent to execute this Agreement and that
                              this Agreement is valid, binding and enforceable as against himself or herself,
                              any s~tch Party's Successors and Affiliates.
d
                       (b)    The representing Party believes that neither the Decedent nor the Ward have
I                             properly executed any right of survivorship or pay on death agreements or other
                              agreenients relating to the creation of non-probate assets and that, if any such
                              agreements exist each respective Party hereby revokes said agreement and
                              returns it to its original title and that any such agreements or contracts are void
                              and of no effect and .that any non-probate assets are an asset of either the
                              Decedent's and/or Ward's estate and pass pursuant to the terms of this.
                              Agreement.

                     (c)      The representing Party owns the claims released herein and has not assigned,
                              released, waived, relinquished, pledged or in any mru.mer whatsoever, sold or
                              transferred, his or her interest, right, and/or claims to or against the Decedent,
                              Decedent's Estate, Ward, Ward's Estate, except as to his or her attorneys, and or
                              the following persons who will also join in the execution of this Agreement.
                              Ken, Candy, and Howard Kirk represent that they have assigned an interest to A1
                              Barcroft, who approves and ratifies all of the terms and provisions of this
                              Agreement as represented by his execution ofthis_Agreement. The Parties agree
                              that the interest of Kathryn and the interest of Kip, respectively, is not and shall
                              never be affected or reduced in any way because of any assignment of any
                              interest made by Ken, Howard Kirk or Candy to AI Barcroft or any other person
                              and that any such assignment shall only affect or reduce the interest of Ken,
                              Howard Kirk and/or Candy in any Property covered by this FSA.

                              Further, the Parties agree that the enforcement of the assignment by any Party to
                              any attorney or third party niay be secured at the request of such attorney or third
                              pru.iy by the filing of an appropriate Security Agreement/Deed of Trust, reflecting
                              the existence of the assignment obligation and the enforcement of the same by the
                   \          attorneys and/or third party who will be treated as Secured Parties.

                       (d)    Each Party confirms and agrees that such Party (i) has relied on his or her
                              own judgment and has not been induced to sign or execute this Agreement by
                              promises, agreements or representations not expressly stated herein, (ii) has
                              freely and willingly executed this Agreement and hereby expressly disclaims
                              reliance on any fact, promise, undertaking or representation made by any
                              other Party or Personal Representative, save and except for the express
                              agreements and representations contained in this Agreement, (iii) waives any
                              right to aqditional information regarding the matters·governed and effected


          ,!J.-r:hiLY SETTLEMENT AGREEMENT- Page 33
           ~\Gibbs\FSA 8'15'08-final
        /"'"

                                                      !<.Ub
    742
~-   .   ..



                 READ, UNDERSTOOD, APPROVED AND
                 AGREED AS TO FORM, CONTENT
                 AND SUBSTANCE:



                 Candace Gibbs Walton, individually, as an heir and/or
                 beneficiary of the Estate of Bert H. Gibbs, Deceased, and
                 as a potential heir and/or beneficiary of the Estate of
                 Katlrryn H. Gibbs, Individually and/or as an Incapacitated
                 Person, and as a contingent beneficiary of the Mary L.
                 Houseworth Revocable Trust ("Houseworth Trust") and the
                 Kathryn Houseworth Gibbs Irrevocable Trust ("Kathryn
                 Gibbs Trust"), and as the virtual representative and next
                 friena of her children, and their successors, plus those
                 minor, m1bom, tmascertained, and contingent beneficiaries
                 of the Estates of either Bert H. Gibbs, Deceased, and/or the
                 Estate oJ Kathryn H. Gibbs, Individually and/or as an
                 Incapacitated Person.


                 STATE OF TEXAS                                      §
                                                                     §
                 COUNTY OF TARRANT                                   §

                                     This instrument was signed and acknowledged before me on the          .5       day of
                 --~.-sezyp+c~-L-L-'-L.Jnt"-"!P~L='--_J' 2008, by CANDACE GIBBS WALTON, in the above stated capacities,
                 known to me or whose identity was verified.




                  ·;,u•v ''"
                 ,.,,~~·
                      ~fh~                CATHIE l SMITH
                ;~~··
                   :        r.~'!.
                              :i     Notary Public, State of Texas       My Commission expires on:   9'- tf- 26f/
                ~,t:t •.•. ~~q         My Commission Expires
                  ..,..,f,fJ,W:•'       September 04, 2011




                  FAMILY SETTLEMENT AGREEMENT- Page 39
              ~ses\Gibbs\FSA 8'15'08-final
     .


           READ, UNDERSTOOD, APPROVED AND
           AGREED AS TO FORM, CONTENT
           AND SUBSTANCE:



            AlB



            STATE OF TEXAS                             §
                                                       §
            COUNTY OF TARRANT                          §

                    Tins instrument was signed and acknowledged before me on the                     5~     day of
            -=5=e-4'_(J'et.:=.Jn'l~\t1e!:....:=.!y'-------' 2008, by AL   BARG:ROFT, in the above stated
            known to me or whose identity was verified


                           CATHIE L SMITH
                       Notary Public, State of Texas
                         My Commission Expires
                         September 04, 2011
                                                                My Commission expires on:    9.-tf-. 201/




                                                                                                  ~p;t ~A~j t~"o
            FAMILY SETI'LEMENT AGREEMENT- Page 44
          ~\Gibbs\FSA 8'15'08-finol

                                                                                   'W)
-r---------~----------..,.._:______________w__l.l~/L___ _ _.,;,/<: t,Y.: . ~ "                                       "·   \
                                                                                                                              \

         744
                  EXCERPT MOTION HEARING - July 31, 2014

                           REPORTER'S RECORD
                         VOLUME 1 OF 1 VOLUMES
                 TRIAL COURT CAUSE NO. 2005-0000126-2-D

                                          )
       IN RE: ESTATE OF BERT              ) IN THE PROBATE COURT
       HUGHES GIBBS, DECEASED;            )
                                          )
        CANDACE WALTON AND                )
        KENNETH GIBBS,                    )
                                          )
                  Plaintiffs,             )
                                          )
       vs.                                ) COURT NO. 2
                                          )
       BEVERLY MILLER,                    )
       INDIVIDUALLY, AND AS               )
       TRUSTEE OF THE GWB                 )
       FRIENDS AND FAMILY TRUST,          )
       ALBERT BARCROFT,                   )
       INDIVIDUALLY AND AS LEGAL          )
       REPRESENTATIVE OF PENTEX           )
       ROYALTY TRUST AND PENTEX           )
       FOUNDATION, DANNY UNGER,           )
       AS TRUSTEE OF GBU FRIENDS          )
       AND ASSOCIATES TRUST, AND          )
       HOWARD KIRK GIBBS,                 )
                                          )
                  Defendants.             ) TARRANT COUNTY,   TEXAS


                                 *****
                              ***EXCERPT***
                          ***MOTION HEARING***
                                 *****
             On the 31st day of July, 2014, the following
      proceedings came on to be heard in the above-entitled
      and numbered cause before the Honorable

      Patrick Ferchill, Judge presiding, held in Fort Worth,

      Tarrant County, Texas;



             Proceedings reported by machine shorthand.

                           CRC for Wells Reporting
                                817-524-6644
745
'   •    4t
                                                    -
                                                                                           Page 39
                             EXCERPT MOTION HEARING - July 31, 2014

         1     personal representative of the estate pending in this

         2     Court is a party.     And you can consolidate these cases.
         3                     THE COURT:     True.
         4                     MS. LEE:     Well.       Okay.     What happened is
         5     when this lawsuit was filed, it was filed specifically
         6     stating that it was for Pentex Foundation not getting
         7     attorney fees that it was entitled to from -- from --

         8     from the estate of Bert Gibbs.

         9                     Your Honor, you have to keep in mind, even
        10     though it does look like these are assets that have been
        11     transferred out of the estate, there are assets that
        12     aren't transferred out of the estate.                There currently

        13     is a $6.1 million offer on a piece of property, to pay

        14     in full, or a $8.5 million installment agreement over

        15     the next five years, that will come to the estate of
        16     Bert Gibbs.

        17                     There is a lot of money out there.                     My
        18     clients -- my two clients own 25 percent of the estate.
        19     So if they own 25 percent, they are potentially going to
        20     get $2 million.     Al Barcroft owns a percentage and
        21     Howard Kirk Gibbs also owns --he owns 12.5 percent.                           So
        22     we have a lot of assets for the estate of Bert Gibbs.
        23                     And we filed an amended answer in the

        24     Fannin county case, because what they

        25     allege -- and       what they allege is exactly what

                                      CRC for Wells Reporting
                                           817-524-6644
              746                                               e28bd4ed-9dff-4753-b322-
                                                                            3H.n                 PAGE   01
                                                             FEDEX OFFICE
                          76B--77'3-0321
~11/17/2et4
               €18:€16




                                                NO. CV~14-41665

         PENTEX FOUNDATION\                              l
                                Plttiutiff               §
                                                         §
         v.                                              §
                                                         §            FANNIN COUNTY, TEXAS
         KENNETH VERN GIBBS, CANDACE                     §
         GffiBS WALTON and HOWARD                        §
         1<1RK GIBBS.    D,ifentlcmts                    §            336111 JUDICIAL DISTRICT



               On November 12, 2014, the parties appeared and the following oxders were
         entered with t·espect to the scheduling of this case.

         1.       Januaty 29,2015, 1:00 p.m.~· Hearing on matters contained within the
                  following documents:

                  A.     Motion to Show Authority, Motion fo1· Change ofVenue, Motion to
                         Stl'ike Intervention, Motion to Dismiss With Pl'l.~judice, and Rule 13
                         Motion fot' Sancti'ons nfea· l)y Kennetn Gi()os and' Canoace Wafton,
                         D~fendants     (filed 4-23-13)

                 B.      Plaintiffs Motion to Compel (filed 7-18-14)

                  C.     Plaintiff and Intervenol''s Motion for Partial Summary Judgment
                         (filed 8-12-14)

                 D.      Motion to    Q~ash   or fo1· Pl'oteotive Ordet Relatin~ to. s~~h~.JJA~ w.rJ.
                         Deposition Notices ( filecl· ,~..4·- N·)·

                 E.      Defendant's Motion for Leave ofComt to File Thh·d-Party Petition
                         (filed 9-15-14)

                 F.      Motion to Compel Discove1·y fi·om GBU Fl'.iends and Associates T1·ust
                         (filed 9~25~14)

         2.      March 12,2015. Mediation must be complete by this date.
         SCI-IJlD\.!1~ ... PA08 l


              747
                                                                                     PAGE   02
                                                FEDEX OFFICE    3101
11/17/2014   08:06       760--779-0321




        J.      May 14) 2015 1:00 p.m.- Pretrial Conference. Ail discovety must be
        t.~o111pleted by this date.

        4.     June 1) 2015,2015, 8:30a.m. -       Jury tl'ial shall commence.

               SIGNED November J.:lzo14.




       SCBUQ\lLINQ ORDE& ... PAOR 2




             748
      PENTEX FOUNDATION,                          §
                            Plaintiff             §
                                                  §                                       ...-(
      v.                                          §
                                                  §            FANNIN COUNTY, TEXAS
      KENNEm VERN GmBS, CANDACE                   §
      GmBS WALTON and HOWARD                      §
      KIRK GIBBS,   Dq'endtmts                    §            336111 JUDICIAL DISTRICT

                         OR»ER OF REFERRAL FOR MEDIATION

             This case is appropriate for mediation pursuant to TEX. CIV. PRAC. & REM.
      CoDE§ 154.0001,     et.seq., The Honorable Curt Henderson (curthenderson.com) is
      appointed Mediator in the above case and all counsel are directed to contact Mediator
      to arrange the logistics of mediation within 30 business days. It is ordered that
      m~iation shall be completed within 120 days from Novembel' 12, 2014.


             Mediation is a mandatory but non-binding settlement conference, conducted
      with the assistance ofthe Mediator. Mediation is private, confidential and privileged
      from process and discovery. After mediation, the Court will be advised by the
      Mediator, parties and counsel, only that the case did or did not settle. The Mediator
      shall not be a witness nor may the Mediator's records be subpoenaed or used as
      evidence. No subpoenas, citations, writs, or other process shall be served at or near
      the location ofany mediation session, upon any person entering, leaving o1· attending
      any mediation session.

            Fees fot· the mediation are to be divided and borne equally by the parties unless
      agreed otherwise, and shall be paid by the parties dil·ectly to the Mediator, and shall
      be taxed as costs.

            Named parties shall be present during the entire mediation process and
      each corporate party must be represented by an executive office with authority
      to negotiate a settlement.

             Referral to mediation is not a substitute for trial and the case will be t!'ied if not
      settled.




749
               SIGNED November            _1_7 2014.

                                                       LA URINE BLAKE, JUDGE PRESIDING




      Chris ·· Lee, Attorney for Defendants
          (,y'                          ~b~"'       /' '
         ~~~/.:~
      Howard Gibbs, Pi·o Se                            ·""1




      ORDER OF REFb1tRAL fOR MED!ATION ... PAGE 2




750
Nov.20. 2014 1:07PM                                                             No. 7446   P. 3




                                        NO. CV-14-41665

         FENTEX FOUNDATION,                      §
                      Plnintiff                  §
                                                 §
         v.                                      §
                                                 §          FANNIN COUNTY, TEXAS
         I(ENN.ETH VERN GIBBS, CANDACE           §
         GIBBS WALTON And HOWARD                 §
         KIRK GIBBSJ     Deje11danfs             §          3361 ~   JUDICIAL DISTRICT

                           ORDER ON MOTIQN TO RECONSIDER
                             . ORDER TO TRANSFER VENI!~

               On November 12, 2014, came on to be considered the Motion to ReconsideL'
         Order to n·ansfer Venue, filed by Pentex .Foundation, Plaintiff, and Joshua Unger,
         Trustee of GBU Fl'lends and Associates TrustJ Intel'venor. The Court, having
         considered the motion, is of the Ot)inion that it should be granted and that the
         followjng orders should be entered.

               It is theJ'efore ORDERED that the Order Appt·oving Kenneth Gibbs and
         Candace Walton's Motion to Change Venue, signed on September 30, 2014, is
         vacated and withdrawn.                                      ·

               It is further ORDERED that the Motion to Change Venue filed by Kenneth
         Gibbs and Candace Walton is in aU things denied.

               SIGNED Novembe1· '.l.\ , 2014.



                                                LA URINE J. BLAKB, JUOOB PRESIDING




   751
Nov. 20. 2014 1:08PM                                      No. 7446   P. 4




                            AS TO FORM ONLY:




         Chrlsty Lee, Attorney fot· Defendants


          ~~
         Howard Gibbs, Pro Se




        OROl!R ON MOJ!OM TQGfANOIPif:Nll.ll ... l'AOB 2




  752
•



                                                                                                                           225 E.                        200
                                                                                                                                    FII~E\\EIW [Al\E, STE.
                                                                                                                                Al\CIIOI<~Gt:. AlAS!\' 99503
                                                                                                                                        M•\11\: 907.339.9931
                                                                                                                                         FAX: 800.437.7901

                                                                                                                                         777 M.~ll\ ST.. STK 600
                                                                                                                                     FOR"I" \Vul<TII. TE.\1\S 761 02
                                                                                                                                      Plllll\E: 817.504.6075
                                                                                                                                          FAX: 800.437.7901

                                                                 November 26,2014
                                                                                                                                clee@'christyleelaw.com
                                                                                                                                 www.christyleelaw.com
    Clerk of the Court
    101 E Sam Rayburn Drive, Suite 200
    Bonham, TX 7541 8

           Re:     Cause No. CV-14-41665
                   Pentex Foundation vs. Kenneth Vern Gibbs, et al.

    To Whom It May Concern:

    We need a certified copy of the Complete Clerk's Record for Cause No. CV-14-41665, which
    should include also the court's docket, notes, memorandums, motions, responses, objections, and
    signed orders, along with all other filings.

    Please send this record to the following:

           Robert Hogue
           Highland Park Place
           4514 Cole Avenue #600
           Dallas, Texas 75205-4193

    If you have any questions, or need we need to make payment arrangements, please contact our
    office. Thank you for your assistance with this matter.

                                                                 Very truly yours,
                                                                 LAW OFFICES OF CHRISTY LEE, P.C.




                                                                 Laura Hagins, Paralegal




                           p   I~   Il   \   <   I   I   \   I   '(   \   '\   S   I   I<   \   I   I   <,   I   I   <.,




    753
Nancy Young                                                                                            336 1h Judicial District
District Clerk Fannin County


                                                       December 5, 2014


             Laura Hagins
             Law Offices of Christy Lee
             225 East Fireweed Lane
             Suite 200
             Anchorage, Alaska 99503


             Re:      Pentex Foundation vs. Kenneth Vern Gibbs, et al
                      Cause Number CV-14-41665

             Dear Ms. Hagins:

             The District Clerk's Office charges a fee of one dollar for each page copied from the case
             file and a fee of one dollar for each document certified. These fees are payable in
             advance.

             Cause Number 14-41665 consists of 758 pages. The cost for copies of these documents
             is seven hundred fifty-eight dollars ($758.00) and fifteen dollars ($15.00) for postage for
             a total cost of seven hundred seventy-three dollars ($773.00).

             Upon receipt of the proper fees, we will process your request.

             Please advise if we can be of further assistance.



             ft;rtfully.

             Linda Long
             Deputy Clerk
             Fannin County, Texas




   Fannin County Courthouse • 101 E. Sam Rayburn Dr., Suite 201 • Bonham, Texas 75418 • (903) 583-7459 • FAX (903) 640-1826




        754
                                                                 ;~ i!'··-
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                                                            · ;·. "tl.'
                                                             '     ,  1. !
                                                                             r""'IJ!'TVI J.,_!·:·
                                                                             l.,.T :.) ......, Ft ~
                                                                                              J     (   .,




                             C~~RLA REAMY                  Xi! I~          r_               ~- .-
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                               Bonham, Texas 75418          P'(    C..::......___ OEPOTY
                               Phone (903) 583-2863



      December 8, 2014

      Mr. Howard Kirk G'
      4360 We        Center Blvd, #205
      Ft.     'h Texas 76137

                     RE:     Pentex Foundation vs. Kenneth Vern Gibbs, et al.
                             Cause Number CV-14-41665 ·

      Mr. Gibbs,

      Ms. Christy Lee has requested that I transcribe the November 12,
      2014, hearing on the Motion to Reconsider Order to Transfer Venue.
      Should you like a copy of the transcript, please forward $55. 00 to me
      at the address above and I will mail a copy to you.

      Should you have any questions, please don't hesitate to contact me.



      Sincerely,




      cparta Reamy, CSR, TCRR

      V
      Cc: Fannin County District Clerk




755
                                            SCOTT SMITH
                                       ATTORNEY AND COUNSELOR AT LAW


E-MAIL: smithlaw@airmail.net
FACSIMILE: (903) 870-1446
TELEPHONE: (903) 868-8686


                                           December 15, 20 14

Nancy Young, District Clerk
Fannin County Courthouse
101 East Sam Rayburn Dr., Ste. 201
Bonham, Texas 75418

          RE: Pentex Foundation v. Kenneth Vern Gibbs, et al.; Cause Number
              CV-14-41665 in the 3361h Judicial District Court ofFannin County,
              Texas.

Dear Ms. Young:

      Enclosed please find an original and one copy of the following: Motion
to Reconsider Order to Transfer Venue. Please have the Fiat presented to the
Court and returned to my office in the enclosed self-addressed envelope.

      Please be advised, pursuant to the State Bar Rules, the Texas Lawyer's
Creed, and respective local rules, that I will be out of the office on the following
dates for vacation and continuing education requirements:

          March 16-17, 2015
          April 22-28, 2015

      Please do not set any matter for hearing or trial during this time, or within
three days after the date of such period. I would request that no discovery be
served during this period or served as to require a response during this period.
I thank you for your attention to this matter.




TSS/bhs

cc:       Christy L. Lee, Esq.
          Howard Kirk Gibbs, Pro Se.




756
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                                        Nancy Young, District Clerk
                                        Fannin County Col!rthouse
                                        10 I East Sam Rayburn Dr., Ste. 201
                                        Bonham, Texas 75418
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Cheryl Dane

From:                        Cheryl Dane [cmdane@fanninco.ne]
Sent:                        Thursday, December 18, 2014 9:54AM
To:                          'smithlaw@airmail.net'
Subject:                     FW: cv-1.4-41665
Attachments:                 Letter.tif


I typed that in incorrectly. We did not receive them. Sorry.


From: Cheryl Dane [m9i1to:cmQane@fan_ninco,_OS\]
Sent: Thursday, December 18, 2014 9:53AM
To: 'smithlaw@airmail.net'
Subject: cv-14-41665

Hello, your letter states that the Motion to Reconsider Order and Fiat were enclosed but we did receive them.
Please see a copy of your letter and the envelope.
Thank you,

Cheryl Dane
Deputy Clerk
District Clerks Office
Fannin County
903-583-7459
http://www.co.fannin.tx.us/




         758
                                                                    1



 1                          REPORTER'S RECORD
                         VOLUME 1 OF 1 VOLUMES
 2                  TRIAL COURT CAUSE NO. CV-14-41665

 3
     PENTEX FOUNDATION,                 ) IN THE DISTRICT COURT
 4                                      )
                                        )
 5              Plaintiffs,             )
                                        )
 6                                      )
     VS.                                ) 336TH JUDICIAL DISTRICT
 7                                      )
                                        )
 8   KENNETH VERN GIBBS and             )
     CANDACE GIBBS WALTON and           )
 9   HOWARD KIRK GIBBS,                 )
                                        )
10                                      )
                Defendants.             ) FANNIN COUNTY, TEXAS
11

12

13

14                    ------------------------------

15                        HEARING BEFORE THE COURT

16                    ------------------------------

17

18

19

20         On the 30th day of September, 2014, the following

21   proceedings came on to be heard in the above-entitled and

22   numbered cause before the Honorable Laurine Blake, Judge

23   presiding, held in Bonham, Fannin County, Texas;

24         Proceedings reported by machine shorthand.

25



                              Gale H. Fiasco, CSR
                                 (903) 640-6696
                                                   2



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

 2
     FOR THE PLAINTIFF:
 3
          MR. SCOTT SMITH
 4        Attorney at Law
          120 South Crockett Street
 5        P.O. Box 354
          Sherman, Texas 75091
 6        (903) 868-8686
          Fax: (903) 870-1446
 7        SBOT NO. 18688900

 8
     FOR THE DEFENDANTS:
 9
          MS. CHRISTY L. LEE
10        Attorney at Law
          777 Main Street
11        Suite 600
          Ft. Worth, Texas 76102
12        (817) 504-6075
          Fax: (800) 437-7901
13        SBOT NO. 24052302

14
     PRO SE DEFENDANT:
15
          MR. HOWARD KIRK GIBBS
16        4360 Western Center Blvd.
          Suite 205
17        Ft. Worth, Texas 76137
          (817) 233-4423
18

19

20

21

22

23

24

25



                           Gale H. Fiasco, CSR
                              (903) 640-6696
                                                                      3



 1                                 I N D E X

 2                           (September 30, 2014)

 3                                                             Page

 4   Announcements......................................       04

 5
     PLAINTIFF'S WITNESSES
 6                              Direct              Cross
     CHRISTY LEE                 10
 7

 8   Court Reporter's Certificate.......................       41

 9
                                EXHIBIT INDEX
10
     PLAINTIFF'S EXHIBITS
11
     NO.   DESCRIPTION                OFFERED       ADMITTED
12   16    Series of e-mails           11            12

13   17    August 21, 2014 e-mail        14         15

14
     DEFENDANT'S EXHIBITS
15
     NO.   DESCRIPTION                OFFERED       ADMITTED
16   A     Rule 11 Agreement for       10            10
           Method of Service
17

18

19

20

21

22

23

24

25



                             Gale H. Fiasco, CSR
                                (903) 640-6696
                                                                            4



 1                    THE COURT:   Pentex Foundation versus Gibbs, and

 2   others, CV-14-41665.   We'll have the attorneys take a seat at

 3   counsel table.   If there are any parties that are here, we'll

 4   have them take a seat, as well.       Okay.   Before we get started,

 5   let's go ahead and have each of the attorneys state their names

 6   for the court reporter so she has the benefit of that and spell

 7   your name where necessary.

 8                    MR. SMITH:   Your Honor, I'm Scott Smith.     I'm

 9   here representing Pentex Foundation.      The representative who's

10   here for Pentex is Danny Unger, who's in the back.       I'm also

11   representing Joshua Unger, trustee to the GBU Family and

12   Friends Trust.   He's present in the courtroom, as well.

13                    MS. LEE:   My name is Christy Lee.     I'm here

14   representing two of the defendants, Candace Walton and Kenneth

15   Gibbs.

16                    MR. SMITH:   And we have a pro se.

17                    MR. GIBBS:   I'm Howard Gibbs.     I am pro se.

18                    THE COURT:   Okay.    And, Mr. Gibbs, are you

19   affiliated with one of the sides or the other?

20                    MR. GIBBS:   Yes, ma'am, I'm a defendant.     Is

21   that what you mean, Your Honor?

22                    THE COURT:   Well, you're sitting at plaintiff's

23   table.   So, my question is, are you sort of affiliated with

24   them or is that just where the other chair was?

25                    MS. LEE:   No, I requested for him to sit over at



                            Gale H. Fiasco, CSR
                               (903) 640-6696
                                                                         5



 1   my table and he wanted to sit over there by them.     You'll find

 2   out --

 3                  THE COURT:    That's fine.   At some point there

 4   will be a division of time, it will be based on the side that

 5   you're affiliated with to some degree.

 6                  MR. SMITH:    I think it's fair to say he's

 7   aligned with my clients in the majority of the relief

 8   requested.

 9                  THE COURT:    Okay.   We have a variety of motions

10   that were filed and we had some filed here at the end that -- I

11   guess, the Court's practice has been a little bit -- well, for

12   lack of a better word -- informal in that the Court's

13   coordinator nor the Court were setting some of the motions or

14   signing the motions for the hearing today.    Though, I'm left

15   with the impression some of the parties may be of the opinion

16   that they were actually being included in today's hearing, and

17   I need to know what the position of the parties are on that

18   issue so we can sort this out.

19                  MR. SMITH:    Judge, if it may help things, I

20   wrote down a summary of what I think is pending based on the

21   order in which they were filed.

22                  THE COURT:    And to the point that I was asking,

23   though, is it your impression that those are live to be

24   addressed, as well, today?

25                  MR. SMITH:    This is my impression.   There's some



                           Gale H. Fiasco, CSR
                              (903) 640-6696
                                                                          6



 1   other things that have been filed --

 2                   MS. LEE:   No.

 3                   MR. SMITH:   Let me finish, please.   Other things

 4   that have been filed that are not set.    This is what I believe

 5   is set for today.

 6                   MS. LEE:   Okay.   I disagree, Your Honor.

 7                   THE COURT:   Okay.

 8                   MS. LEE:   For his list, first -- well, the

 9   motion to quash which concerns -- yes, September 30th.       Also,

10   the October 13th subpoenas that were filed, that is also in his

11   motion to quash which he doesn't have here on his list.       The

12   motion to issue authority, yes; motion to transfer venue; first

13   supplement to motion to show authority, yes; motion to strike

14   intervention that was filed -- that's actually on our notice to

15   -- for the hearing when we first set the hearing.     So, motion

16   to strike intervention is not on his list.    I have the notice

17   for hearing for that, Your Honor.    Motion for leave to file

18   third-party petition, yes.

19                   The thing that's mostly up for dispute is the --

20   well, besides on his list -- we have a motion to strike

21   intervention which should be on this list.    And then the motion

22   for partial summary judgment, I never received notice of, an

23   e-mail.   We have a Rule 11 agreement, Your Honor, which is

24   where we -- for judicial economy and just because of where

25   everybody lives, we had been sending things through e-mail.



                            Gale H. Fiasco, CSR
                               (903) 640-6696
                                                                         7



 1   And the Rule 11 agreement provides that if the party does not

 2   respond back stating "I have received the document," that it

 3   needs -- that alternate service needs to be made, meaning it

 4   needs to be faxed or mailed.     And I was never faxed nor mailed

 5   the -- his notice -- his fiat saying that this motion for

 6   partial summary judgment would be heard today.

 7                    And there seems to be -- I mean, I truly did not

 8   receive notice on that to be heard.    And we have enough motions

 9   to be heard anyway.    And I did respond to it only when I was

10   responding -- there was other motions that were filed on the

11   same day I filed my response to motion for partial summary

12   judgment.    I also filed a motion to compel discovery, but

13   that's not being heard today.

14                    And I do have -- for the motion to strike, I

15   believe I do have the notice of hearing which was filed with

16   the Court.    It was -- the one -- the original hearing to be

17   heard was the motion to show authority, the motion to transfer

18   venue, and, I believe, the motion to strike.     And I -- let me

19   check in my folder to see if I happen to have that.

20                    MR. SMITH:   Judge, I do have a serious problem

21   with the motion for summary judgment, the contention of Counsel

22   that she did not get notice of that.    She asked me yesterday to

23   send her the notice.    I did.   She's claiming not to have

24   received it, but I have very high confidence that she did

25   receive it based upon subsequent correspondence.     And this is a



                             Gale H. Fiasco, CSR
                                (903) 640-6696
                                                                            8



 1   critical motion.    I think how you decide on the motion for

 2   summary judgment will make a lot of this stuff resolve itself.

 3   That's why it's such a critical motion for us to solve.

 4                     THE COURT:    Which would mean it would be very

 5   important to make sure she actually had adequate notice --

 6                     MS. LEE:     Right.

 7                     THE COURT:    -- if it's that significant.

 8                     MR. SMITH:    I've got proof of it.

 9                     MS. LEE:   No, Your Honor, I --

10                     THE COURT:    I guess my point is this:   How much

11   time does she need?

12                     MR. SMITH:    It's been on file for six weeks.

13                     THE COURT:    Okay.   How much time does she need

14   for notice?

15                     MR. SMITH:    She needs 21 days.   I gave her April

16   -- August 21st.

17                     MS. LEE:   Your Honor, I did not receive that.

18   And what he is conferring --

19                     THE COURT:    What is it going to hurt to have 21

20   more days?

21                     MR. SMITH:    What's going to hurt --

22                     THE COURT:    Or, over whatever -- or whatever the

23   amount of time.

24                     MR. SMITH:    I can tell you what it's going to

25   hurt, Your Honor.    When she filed this case in Tarrant County,



                             Gale H. Fiasco, CSR
                                (903) 640-6696
                                                                        9



 1   she filed a series of lis pendens which has frozen all the

 2   assets that my clients receive in order to fund their defense.

 3   And so, every month that passes by, we're falling further and

 4   further behind and we're looking at risking not being able to

 5   fund our defense because of the lis pendens which has been

 6   filed.

 7                  MS. LEE:    Your Honor --

 8                  MR. SMITH:    And it's a very simple motion.     It's

 9   the crux of this case.    It's how we see the case versus how

10   they see the case.   And I think it's a very simple legal

11   proposition.

12                  THE COURT:    Okay.   Well, and I'm not talking

13   about how simple it is.    You're saying it's a dramatic remedy

14   --

15                  MS. LEE:    Yes.

16                  THE COURT:    -- it's going to define the case.

17                  MS. LEE:    Right.    I --

18                  THE COURT:    Ma'am, if I want you to interrupt, I

19   will ask you to interrupt me.     I understand you're a zealous

20   advocate, but please hold your tongue.      Really?

21                  All right.    I think that it's important that if

22   it's going to be that critical of a motion, that I want to make

23   sure we have solid information whether somebody was served or

24   not and how much time that's going to take.     I'll do everything

25   I can to make sure we get this heard on the 21st day, or



                              Gale H. Fiasco, CSR
                                 (903) 640-6696
                                                                             10



 1   whatever we need to do, if that's -- if that is a failing in

 2   this case.      I don't need to have anything overturned on appeal

 3   and redo it again.      So, let's look and see what it is that you

 4   have to demonstrate that there was some notice, if there was in

 5   fact.

 6                       MR. SMITH:    I would be happy to do that, Your

 7   Honor.       Actually, I think it might be important to have Counsel

 8   represent to the Court affirmatively --

 9                       THE COURT:    You need to speak up a little bit.

10                       MR. SMITH:    I'm sorry.    My voice doesn't carry.

11   I think I need to call Counsel for the purpose of establishing

12   notice.

13                       THE COURT:    Okay.   All right.   Ma'am, if you'll

14   raise your right hand.

15                        (Witness sworn by the Court.)

16                       THE COURT:    You may put your hand down.   You may

17   proceed.

18                       MR. SMITH:    Thank you, Your Honor.    Can we do

19   this informally?

20                       THE COURT:    You may.

21                                    CHRISTY LEE,

22   having been first duly sworn, testified as follows:

23                              DIRECT EXAMINATION

24   BY MR. SMITH:

25           Q.     State your name, please.



                                Gale H. Fiasco, CSR
                                   (903) 640-6696
                                                                         11



 1        A.     Christy Lee.

 2        Q.     Are you representing to the Court that you did not

 3   get notice on August the 21st setting this matter for hearing

 4   -- setting the motion for partial summary judgment for hearing

 5   today?

 6        A.     Was that the e-mail that you sent me last night?

 7        Q.     Yes.

 8        A.     No, I did not receive that e-mail.

 9        Q.     I'm going to show you a package of exhibits -- and

10   this is a copy for you -- marked as Exhibit 16, Your Honor.

11   And I'll represent this is a series of correspondence between

12   myself and Counsel and ask that it be admitted.

13                      MS. LEE:   No, I object to these documents.    This

14   is -- this is not what I have in my file at all.      And I have a

15   very extensive IT and I had my IT individuals -- this is not --

16   I can assure you this is not a reply to your e-mail.      I replied

17   to this letter.

18                      MR. SMITH:   I'm just asking to offer the

19   exhibits, Your Honor.

20                      MS. LEE:   No, I object to the exhibit, Your

21   Honor.    I can assure you this is not a response in which I

22   replied on Page 2.     Oh, wait -- I apologize.   I don't believe

23   this was a reply, but I do believe that this is associated with

24   the August 22nd e-mail, which is what I had responded to.         The

25   August 22nd e-mail is concerning his letter.      So, I do not --



                                Gale H. Fiasco, CSR
                                   (903) 640-6696
                                                                            12



 1   can I ask you some questions about the exhibit just to ensure

 2   that I'm understanding what you're trying to do?

 3                      THE COURT:    Have you asked the questions that

 4   you need of this witness?

 5                      MR. SMITH:    Not yet.     I wanted to get the

 6   document admitted so I can ask follow-up questions.          There

 7   won't be many.

 8                      MS. LEE:   I still question Number 2.     The other

 9   documents, I believe --

10                      THE COURT:    You're saying Page 2?

11                      MS. LEE:   Yes, ma'am.     I believe the rest are

12   accurate.

13                      THE COURT:    Okay.   The exhibit will be admitted

14   -- Plaintiff's 16.

15                      MR. SMITH:    Thank you.

16        Q.     (By Mr. Smith)      Do you see on the first page of

17   Exhibit 16 the reference in green to a 30-day extension

18   request?

19        A.     In green?

20        Q.     Yeah, it should be highlighted in green on

21   Exhibit 16.

22        A.     Yes.

23        Q.     If you look at the last -- Page 7, you responded to

24   that, didn't you?

25        A.     No, that was from your Rule 11 agreement that you had



                              Gale H. Fiasco, CSR
                                 (903) 640-6696
                                                                         13



 1   -- I had my staff -- I did not respond to this e-mail.      I

 2   responded to the fax that your staff sent me concerning the

 3   Rule 11 agreement.

 4        Q.   Okay.    You can see on the first page of Exhibit 16 it

 5   references the attachment "Rule 11 agreement."      You see that on

 6   the attachment line?

 7        A.   I'm sorry, I don't know where you're at.

 8        Q.   Here on the first page.

 9        A.   Okay.

10        Q.   "Attachments," it says, "Clerk reappearance, Rule 11

11   agreement, motion for partial summary judgment."      You see

12   those?

13        A.   Yes.

14        Q.   Okay.    And in the other letters that are contained

15   within Exhibit 16, there's no other reference to this 30-day

16   extension except in your response on Page 7, is there?

17        A.   Your Rule 11 agreement -- which you did not put here

18   -- which was faxed to my office did have the 30-day agreement.

19                     MR. SMITH:   That's all I have of this witness,

20   Your Honor.

21                     THE COURT:   Okay.   Counsel, do you have any

22   testimony or information you would like to present to the Court

23   on this point?

24                     MS. LEE:   Yes, Your Honor.   I did not receive

25   the e-mail on the 21st.      When I received this letter, Your



                             Gale H. Fiasco, CSR
                                (903) 640-6696
                                                                         14



 1   Honor, which is attached to Number 3 -- on Page 3, it says,

 2   "Finally, will you be sending me the Rule 11 agreement I sent

 3   you yesterday?" -- which is at the bottom.     I had my staff call

 4   his office to inquire about what Rule 11 agreement.      They faxed

 5   me a Rule 11 agreement and that is what was referred to.

 6   Unfortunately, my fax is in my Alaska office and my staff is

 7   not -- I only have one in Alaska.      And she's not available to

 8   retrieve the information from the fax because she is seriously

 9   ill right now, so -- and I only found out about this yesterday.

10   I can assure Your Honor I'm prepared for everything else.     I

11   looked in my spam folder.     I do have a spam that holds e-mails.

12   If I knew this was going to be heard -- even though we have all

13   of these other motions to be heard -- I would have been

14   prepared for it.

15                    THE COURT:   Okay.

16                    MR. SMITH:   I have another exhibit, Your Honor.

17   Mr. Gibbs -- I asked him, he's the pro se -- I asked him to

18   print up the e-mails that he got.      He can affirm this if you'd

19   like.   But I have Exhibit 17, which is what he gave me that he

20   had printed up, which is the e-mail that he received.      And I'll

21   offer that at this time if I may.

22                    THE COURT:   On 17?

23                    MR. SMITH:   Yes, ma'am.

24                    THE COURT:   I'm waiting for her response.   I've

25   heard nothing.



                            Gale H. Fiasco, CSR
                               (903) 640-6696
                                                                       15



 1                   MS. LEE:    It purports to be the same e-mail that

 2   he's saying that he sent to me on Exhibit -- Page 1.

 3                   THE COURT:   Okay.    Exhibit 17 is admitted

 4   appearing no objection.

 5                   MR. SMITH:   And, finally, I would offer that I

 6   do not believe that we were asked to fax any Rule 11 agreement.

 7   Most everything we do -- at least from our side of the case --

 8   is done via e-mail, and that's why I gave you the entire e-mail

 9   traffic during this period of time.     I do believe notice was

10   validly served and we're asking to proceed on the motion for

11   partial summary judgment.

12                   THE COURT:   Okay.    Your response.

13                   MS. LEE:    I actually have the Rule 11 agreement

14   that was signed by all parties, and it specifically states that

15   "The parties agree to e-mail service of all documents

16   pertaining to the matter and to acknowledge the receipt of the

17   service within one business day by e-mail or fax.      If no

18   acknowledgement of the service is forthcoming from the

19   receiving party within one business day, the service shall be

20   effected in an alternate manner pursuant to Rule 21 of the

21   Texas Rule of Civil Procedures."

22                   I did not reply to him, Your Honor.     And he can

23   confirm that I do write back saying, "Received it," "Got it,"

24   "Thank you."   And I did not reply.    The only reply that he has

25   is three days later on August 23rd -- or, no, I -- on the next



                            Gale H. Fiasco, CSR
                               (903) 640-6696
                                                                           16



 1   day in which, when I reply, I'm replying to the attached letter

 2   for Number 3 on the very next day that says -- where I say,

 3   "I've not been in my office all day yesterday and I'm getting

 4   the e-mails now, so I'll be responding hopefully by the end of

 5   the day."

 6                   We have filed this Rule 11 agreement, Your

 7   Honor, but I have a copy for you if you would like it.

 8                   THE COURT:    You're welcome to mark it if you

 9   desire to offer it at this part of the hearing.

10                   MS. LEE:   Exhibit A, Your Honor.      May I please

11   approach?

12                   THE COURT:    Opposing counsel?

13                   MR. SMITH:    I have no objection.

14                   THE COURT:    Admitted.   All right.    Ms. Lee, what

15   is the configuration of your office?      How do you run your

16   business?

17                   MS. LEE:   I have two offices, Your Honor.      I

18   have one in Alaska and one in Texas.      The one in Alaska is my

19   main office with my server.    Anyone who works for me logs into

20   that server.   That's where my faxes come in to.       I have

21   currently one staff in Alaska, two staff in Texas, but they

22   remote in.   So, everything is done out of my main Alaska

23   office.   When I file documents, we file them through Federal

24   Express overnight from Alaska.

25                   THE COURT:    So, where do you reside?



                            Gale H. Fiasco, CSR
                               (903) 640-6696
                                                                         17



 1                     MS. LEE:   My permanent residence is in Alaska,

 2   Your Honor.

 3                     THE COURT:   But you live down here?

 4                     MS. LEE:   I do have a place here, Your Honor,

 5   yes.   And my office in Fort Worth is more of a satellite

 6   office.    I do not have staff there.

 7                     THE COURT:   But you have two people associated

 8   with the Texas office?

 9                     MS. LEE:   Yes, Your Honor.   One of them is

10   located in India and one of them -- she's just there for the

11   military.    She's an attorney -- and the other one is in College

12   Station.

13                     THE COURT:   So, how do you get your

14   correspondence?

15                     MS. LEE:   If it comes to my Texas office, they

16   scan it in and they send it to me.      All e-mails, obviously,

17   will come to my e-mail address that I can access anywhere in

18   the world.    I can log into my server.    I also have it on my

19   iPhone.    So, if Mr. Smith serves me with anything, it goes to

20   my Texas office.    They scan it in and send it to my Alaska

21   office, and then when I'm in town I will take the originals.

22   Or, if I need them to ship to me, I'll have them ship it.

23                     THE COURT:   Do you have anyone else that handles

24   your e-mails for you or you handle them directly yourself?

25                     MS. LEE:   I handle them myself, Your Honor.



                              Gale H. Fiasco, CSR
                                 (903) 640-6696
                                                                           18



 1                   THE COURT:    Okay.   And what is the notice

 2   regarding the family medical leave -- how does that play into

 3   where you're spending your time or what you're doing for work

 4   right now?

 5                   MS. LEE:   I spend a lot of time in Texas because

 6   my father is very ill right now.      Opposing Counsel is aware of

 7   that.

 8                   THE COURT:    All right.    Now, anything further on

 9   this point, Mr. Smith?

10                   MR. SMITH:    No, Your Honor.    No.    I'm sorry.

11                   THE COURT:    Anything further, Ms. Lee?

12                   MS. LEE:   Concerning the motion for partial

13   summary judgment, Your Honor?

14                   THE COURT:    Yes.

15                   MS. LEE:   No.    Well, no, Your Honor -- if we're

16   just talking about me receiving notice, then, no.

17                   THE COURT:    Correct.     That's all I'm talking

18   about.   We haven't argued any motions.

19                   All right.    So, when are you saying that you

20   actually received notice of this service?

21                   MS. LEE:     Yesterday.    I received the document,

22   Your Honor, when he provided it to me in August.        I did not

23   receive notice of the hearing until yesterday.         And the only

24   way -- the reason I received notice was because the very

25   beginning of his response to my -- or his objections to my



                              Gale H. Fiasco, CSR
                                 (903) 640-6696
                                                                         19



 1   response, it stated that I did not file it and it's supposed to

 2   be heard today.    And that was the first time I became aware of

 3   it, through his filing.

 4                     THE COURT:   Okay.   What we're going to do is,

 5   we're going to take up the summary judgment motion at another

 6   time.   We need to pick that time.     I don't have the benefit of

 7   having the Court's coordinator at this location.      Let me make

 8   that contact because this issue needs to be firmed up.

 9                           (A break was taken.)

10                     MR. SMITH:   I was going to try to get your

11   attention before you get off the phone.      Counsel is actually

12   supposed to be in the State for depositions the 13th, 14th, and

13   15th.   She's indicated she is willing to waive the 21-day

14   requirement if you want to do it during that period of time.

15   I'm okay with that.

16                     THE COURT:   I have a capital murder case

17   starting that day.

18                     MR. SMITH:   That seems to take precedence.

19                     THE COURT:   It will probably take us all day to

20   pick on Monday.    We're doing questionnaires.    Unless the

21   parties want to come in on Tuesday at 8 a.m.      And then I need

22   to know how long you expect to argue your motion for summary

23   judgment.   I can accommodate you if you can be here at 8.      I

24   would expect you be done within an hour's time.

25                     MR. SMITH:   I can certainly be done in an hour's



                             Gale H. Fiasco, CSR
                                (903) 640-6696
                                                                        20



 1   time.   There will be objections, no doubt.    And that will take

 2   more time than the actual motion.     But I think an hour would be

 3   more than enough time.

 4                   THE COURT:    Is that sufficient time for both

 5   sides to finish up their case?

 6                   MS. LEE:   If he's willing to do it in an hour,

 7   then we'll do it in an hour.

 8                   THE COURT:    Okay.   Then we'll do it October 14th

 9   at 8 a.m.

10                   MR. GIBBS:    Your Honor, I have a previous work

11   engagement.   I wanted to come up here for the hearing but I do

12   have a previous engagement.    May I have leave of the Court,

13   please?

14                   THE COURT:    Yes.

15                   MR. GIBBS:    Thank you.

16                   THE COURT:    For the purposes of the summary

17   judgment motion, sir, you can appear by phone if you want.

18   Otherwise, we'll expect you also to have had notice of the

19   setting based on the fact that I'm setting it in court.

20                   MR. GIBBS:    Yes, ma'am.

21                   THE COURT:    So, you won't receive anything else

22   in writing as far as the Court is concerned.     But October 14th

23   at 8 a.m. we'll have the motion for summary judgment.

24                   MR. GIBBS:    Does that mean I need to be here,

25   Your Honor?



                              Gale H. Fiasco, CSR
                                 (903) 640-6696
                                                                        21



 1                   THE COURT:     Only if you want to be heard.

 2   You're also welcome to appear by phone.

 3                   MR. GIBBS:    Yes, ma'am.

 4                   THE COURT:    You'll need to make those

 5   arrangements.   Thank you.

 6                   All right.    Let's step through the other motions

 7   that we have.   We have the motion to show authority, motion for

 8   change of venue.

 9                   MS. LEE:     Yes, Your Honor.

10                   THE COURT:    Do the parties think those are

11   appropriate to take up initially?

12                   MS. LEE:     Yes, Your Honor.   Also, I've conferred

13   with opposing Counsel, and the motion to strike was

14   inadvertently left off.     That should be on the list, as well.

15   Motion to strike intervention.

16                   MR. SMITH:    I believe it should have been set,

17   yes, Your Honor.

18                   THE COURT:    Okay.

19                   MR. SMITH:    I tried to be inclusive.    It was set

20   for original filing, which included the motion to show

21   authority as I recall.     The intervention was filed later.

22                   MS. LEE:     June 23rd.

23                   MR. SMITH:    Yeah, it's properly set.

24                   MS. LEE:     And if, Your Honor, we're going by

25   dates, I think that would be Number 2.      So, that would be after



                              Gale H. Fiasco, CSR
                                 (903) 640-6696
                                                                          22



 1   the motion to show authority, motion to change venue.

 2                    THE COURT:    Okay.   I'm looking at the document

 3   filed on April 25th, motion to show authority, motion for a

 4   change of venue, others.      Is that one of the documents you all

 5   are talking about or have you had amended pleadings since then

 6   on that?

 7                    MS. LEE:   Yes, Your Honor.    I believe there's

 8   also a first supplement to the motion to show authority, as

 9   well.

10                    THE COURT:    Okay.   I have first supplement to

11   motion to show authority filed on September 29th, 2014.        Is

12   that the document you're referring to?

13                    MS. LEE:   The 29th?

14                    THE COURT:    September 29th, today's date, at

15   9:28 a.m.

16                    MS. LEE:   That would have been yesterday, Your

17   Honor?

18                    THE COURT:    I'm sorry.   Yesterday, yes.

19                    MS. LEE:   I guess that's the document.      We

20   shipped it out on -- prior to that.      Should have received it

21   Friday.    But, yes, Your Honor, that would be the document.

22                    THE COURT:    Okay.   Are you expecting that this

23   is supposed to replace the other or is it actually serving to

24   supplement?

25                    MS. LEE:   Just a supplement, Your Honor.



                             Gale H. Fiasco, CSR
                                (903) 640-6696
                                                                        23



 1                    THE COURT:   Okay.   Then I'm looking at the

 2   June 18th filing of the original petition and intervention.

 3   And I am assuming that that's the petition or motion that's

 4   being objected to or challenged.

 5                    MS. LEE:   Yes, Your Honor.

 6                    MR. SMITH:   No.

 7                    THE COURT:   You're saying, no, you have a

 8   supplemental one?

 9                    MR. SMITH:   No, I think the motion to show

10   authority was dealing with the original petition that was filed

11   by Pentex Foundation.

12                    MS. LEE:   I believe she's -- what she's

13   referring to is my -- Your Honor, you're referring to my motion

14   to strike?

15                    THE COURT:   Yes.

16                    MS. LEE:   Yes.

17                    MR. SMITH:   It would be that petition and

18   intervention, yes, Your Honor.

19                    THE COURT:   Okay.   I just want to make sure I

20   have my hands on the documents we're talking about.     All right.

21   I'll receive some input on the motions that y'all want to

22   address first.

23                    MS. LEE:   Your Honor, I think the motion to show

24   authority should be first.    Potentially some housekeeping

25   concerning some subpoenas to -- that I sent out -- which



                             Gale H. Fiasco, CSR
                                (903) 640-6696
                                                                         24



 1   documents have not been provided to me.     That could be very

 2   brief before the motion to show authority.

 3                  THE COURT:    All right.

 4                  MR. SMITH:    Your Honor, it's my position that

 5   the motion to show authority is not properly before the Court.

 6   You probably don't see a whole lot of these.      I don't know if

 7   you're familiar with the Rule but I brought a copy for you.

 8                  THE COURT:    Thank you.

 9                  MR. SMITH:    I have a copy for Counsel, as well.

10   It does require that the motion be sworn.      And this motion --

11   until the first supplement on the 25th, there's not even a hint

12   of an affidavit.   And the affidavit that we got does not -- is

13   not sufficient for what is required.      And I've got a case law

14   to show you, Your Honor.    It's the Townsend case out of

15   Beaumont last year.    It says -- and this is coming right from

16   Rule 12 -- "requires a sworn statement that the movant believes

17   the suit is being defended without authority."      I've got a copy

18   of the affidavit that Counsel submitted to tender to the Court,

19   and all it does is authenticate certain documents.      It doesn't

20   trigger the motion to show authority because Counsel has not

21   stated under oath that the suit is being prosecuted or defended

22   without authority.    Without that, it's not properly before the

23   Court.

24                  THE COURT:    Okay.   Your response.

25                  MS. LEE:    It's throughout the entire document,



                             Gale H. Fiasco, CSR
                                (903) 640-6696
                                                                       25



 1   Your Honor.   It's throughout all the documents that this is --

 2   they do not have authority.    That this case has been filed --

 3   that is not only in my motion to show authority, but it is in

 4   every single document that we have filed with this Court --

 5   almost every single document that we have filed.     That he --

 6   that Scott Smith is pursuing this case without the authority of

 7   Pentex Foundation -- without the board of Pentex Foundation.

 8   It's throughout -- and so, the affidavit is certifying the

 9   authenticity of the documents that are provided to show that

10   the authority was not appropriately obtained by Mr. Smith nor

11   by Mr. Skotnik when they were hired.     And I do have both of my

12   defendants here who have filed multiple affidavits with this

13   Court and could also profess that this is being filed without

14   authority.

15                   THE COURT:    Okay.   But do you have a sworn

16   motion is his point.    The Rule --

17                   MS. LEE:   All you have -- it's my understanding,

18   Your Honor, that we have to provide an affidavit and I did

19   provide an affidavit.

20                   THE COURT:    Okay.   Well, have you looked at what

21   he's saying the Rule says and what's been printed out?

22                   MS. LEE:   Well, the Rule provides that a sworn

23   written motion, and that was supplemented in my first

24   supplement, Your Honor.

25                   THE COURT:    So, you're saying you filed the



                             Gale H. Fiasco, CSR
                                (903) 640-6696
                                                                          26



 1   affidavit?

 2                    MS. LEE:   Yes, Your Honor.    It's the affidavit

 3   that he had provided to you, Your Honor.       But, again, I have my

 4   clients here.    We are swearing that he has -- he is prosecuting

 5   this case without authority.     And I can assure you that the

 6   evidence will show that.

 7                    THE COURT:   Well, I'm not ready to hear that

 8   part.    We've got to get over this hurdle.     So, show me --

 9                    MR. SMITH:   Additionally, Your Honor -- I'm

10   sorry.    I don't mean to interrupt.    It does require ten days

11   before the hearing.     And we got this -- I got it on the 25th,

12   you got it today or yesterday.    So, that's not even timely even

13   if it was sufficient.    So, there's a twofold problem here.

14                    MS. LEE:   I don't believe that it does provide

15   it has to be -- you have to have notice of the hearing ten days

16   before the hearing.     The notice was given out in, I believe,

17   June.    This has been on the docket since June.

18                    THE COURT:   Okay.    It says, "The notice of the

19   motion shall be served upon the challenged attorney at least

20   ten days before the hearing on the motion but the motion must

21   be sworn to."    So, was it sworn to?    It sort of presupposes the

22   swearing to the motion will have happened first and then we've

23   got ten days' notice for the hearing.      Are you saying it

24   happened in that order?

25                    MS. LEE:   No, Your Honor.    The motion was



                              Gale H. Fiasco, CSR
                                 (903) 640-6696
                                                                        27



 1   originally --

 2                    THE COURT:   I mean, we wanted to make sure we

 3   gave you the time --

 4                    MS. LEE:   Absolutely.

 5                    THE COURT:   -- on the motion for partial summary

 6   judgment, so, in all fairness, don't you think that Mr. Smith

 7   should have time --

 8                    MS. LEE:   Yes, Your Honor.

 9                    THE COURT:   -- I mean, consistent with the

10   Rules?    I mean, if we're going to play by the rules on one

11   side, we need to play by the rules on the other, don't you

12   think?

13                    MS. LEE:   That's why I'm not really arguing it,

14   Your Honor.

15                    THE COURT:   Okay.   All right.   So, then it would

16   seem that the parties need to address this motion at a time

17   when you have sufficient notice, or are you trying to use it

18   now as a defensive measure to say it shouldn't get to be raised

19   at all?

20                    MR. SMITH:   Absolutely, Your Honor.   It's here,

21   it's set.    And if it's not set properly, it should be

22   dismissed.

23                    MS. LEE:   Your Honor, I have a lot of case law

24   that -- and even in -- I think Mr. Smith can also inform you

25   that he was able -- in another court hearing concerning a



                             Gale H. Fiasco, CSR
                                (903) 640-6696
                                                                         28



 1   motion to show authority, that he was able to get an extension

 2   to provide additional information.     And even though I could

 3   have argued the exact same thing -- the motion was prime and

 4   ready to be heard -- that it should not be heard and should be

 5   dismissed with prejudice, but that's not what -- and I know

 6   that court's ruling is not precedence on your court.     I'm just

 7   letting you know if we're all going to play fair, he was able

 8   to get an extension for that court hearing to provide

 9   additional information.   I'll be more than happy to supplement

10   those again, get it to this Court tomorrow, next day, and we

11   can have it set on the 13th or another day that is mutually

12   appropriate.

13                    MR. SMITH:   And this is the problem, Your Honor.

14   This is a side show.   We can't get to the meat of the matter if

15   we're playing games with side shows.     We did have a hearing in

16   Tarrant County in July.   And we produced all the information

17   requested in July and August.    We produced about 500 pages of

18   documents, a lot of which supports --

19                    THE COURT:   So, are you ready to go forward on

20   the motion now, Mr. Smith?

21                    MR. SMITH:   I'm not prepared to go forward

22   because it's not properly before the Court.

23                    THE COURT:   Okay.   Well, we can't have it both

24   ways.   I can't give you everything when it's just the ruling

25   that you want.   I mean, if you want to have me rule on it, she



                            Gale H. Fiasco, CSR
                               (903) 640-6696
                                                                            29



 1   wants to move forward.       If you want to have the time you need,

 2   then I'll give you the time you need.       You said you already

 3   presented to one, it would seem you would be prepared.

 4   However, if you're not prepared because you did not have

 5   notice, I'm happy to give her the time that she needs.         Which

 6   way do you want it?

 7                     MR. SMITH:    I would prefer to have it properly

 8   set with the supporting affidavit.

 9                     THE COURT:    Okay.   Well, let's do that, then.

10   Okay.   So, what -- when do y'all want to hear it?      I cannot

11   stack multiple hearings on the 14th.       I will be distracted with

12   another matter.    Okay.     I can't have this many hours put into

13   this hearing at that time.       I want to give you the time that

14   you need.   We can set this before that hearing because that one

15   was set for 21 days out.

16                     MS. LEE:    Your Honor, did you say that -- when

17   you had spoken to the clerk -- that you had time on the 20th,

18   or what days were you looking at?

19                     THE COURT:    I was asking about the 20th.    It

20   would be another 8 a.m. start.       The jury trial, we expect that

21   mini-cap to run through the next week.       There's a chance that

22   it would not.     But I would need to start at 8 a.m. on that

23   Monday, the 20th.

24                     MR. SMITH:    I can do it then, Your Honor, but I

25   am set for a jury trial in the 15th District Court.       My guess



                                Gale H. Fiasco, CSR
                                   (903) 640-6696
                                                                          30



 1   is that's not going to be reached but I'd like everybody to

 2   know that when you set this.

 3                    THE COURT:   Okay.    Well -- but if we start this

 4   case -- if we start this at 8 a.m., we wouldn't actually have

 5   priority but we would do everything we could to get you out of

 6   here.

 7                    MR. SMITH:   I'm already set.    I can't make it.

 8   That's a jury trial setting.

 9                    THE COURT:   Right.    But having this at 8 a.m.

10   would be earlier than the 8:30 or 9:00.

11                    MR. SMITH:   It's virtually impossible to

12   complete this in an hour.     She subpoenaed several witnesses for

13   this.

14                    THE COURT:   Okay.    Then when -- what works for

15   you?    You don't want it put off.

16                    MR. SMITH:   I'm just saying I can't double-set

17   it if I can't be able to call and tell the Court I'm going to

18   be in a jury trial.

19                    THE COURT:   Right.    I mean, I don't think that's

20   a good use of anybody's time.    You're telling me that your

21   clients want this heard now.    If you want to put it off, I'll

22   be happy to give you a different day.      What timeframe -- what

23   timeframe would you like?

24                    MR. SMITH:   I can do it that Tuesday.    I'll know

25   for sure if I'm in the jury trial by Monday, so...



                             Gale H. Fiasco, CSR
                                (903) 640-6696
                                                                           31



 1                    MS. LEE:    October 21st?

 2                    THE COURT:    8 a.m. on the 21st?

 3                    MR. SMITH:    Yes, ma'am.

 4                    MS. LEE:    Yes, Your Honor.

 5                    THE COURT:    All right.    We'll see everybody at

 6   8:00 a.m. on that one.      All right.   Okay.   I believe there's a

 7   motion for change of venue.     Are the parties ready on this

 8   matter?

 9                    MS. LEE:    Yes, Your Honor, I am.

10                    MR. SMITH:    Yes, Your Honor.

11                    MS. LEE:    No objection.

12                    THE COURT:    All right.    Looks like we're going

13   to make some progress.      All right.   Go ahead and you may make

14   your argument.   I believe, Ms. Lee, this is your motion.

15                    MS. LEE:    Yes, Your Honor.    Our -- the basic

16   argument that we have is that obviously the venue is not

17   proper.   A contract for sale for land, which is the whole --

18   which is why we're in front of this Court -- was drafted and

19   it's an undisputed fact drafted by an individual, Allen

20   Barcroft, who is not an attorney.        He drafted this document --

21                    MR. SMITH:    Are we making evidence, Your Honor?

22                    MS. LEE:    I can provide --

23                    MR. SMITH:    There's no affidavit to support

24   these kinds of allegations and I don't think it would be

25   appropriate to get into those.



                              Gale H. Fiasco, CSR
                                 (903) 640-6696
                                                                        32



 1                    THE COURT:   Okay.   Do you have something to

 2   demonstrate what you're arguing?

 3                    MS. LEE:   Well, I have my clients here who can

 4   testify to the drafting of the document because they signed it.

 5   But it comes to the crux of, they're trying to say that a

 6   document that this gentleman drafted --

 7                    MR. SMITH:   Your Honor, I don't mean to

 8   interrupt.   I need to make an objection.      Venue motions are

 9   based upon venue facts pleaded and affidavits, not testimony.

10   So, I would object to anything outside the record.

11                    THE COURT:   What's your response to that, Ms.

12   Lee?

13                    MS. LEE:   I believe -- I have to look at my

14   documents, but I believe that I have the information in my

15   actual motion, Your Honor.

16                    THE COURT:   Is it filed in the form of affidavit

17   or something that supports --

18                    MS. LEE:   No, Your Honor, it's in my motion.     I

19   can move on.    I have other arguments I can argue.

20                    THE COURT:   Okay.   So, there's no evidence to

21   support that.    We'll move on.

22                    MS. LEE:   Yes, Your Honor.    Okay.   So, Mr. Smith

23   provides -- so, this is a mandatory venue provision in the

24   contract because the contract -- there's a five-million-dollar

25   potential buyout.   And he provides that -- according to Rule



                             Gale H. Fiasco, CSR
                                (903) 640-6696
                                                                       33



 1   15.020(a) of the Civil Practice and Remedies Code -- that "A

 2   major transaction means a transaction by written agreement

 3   under which a person pays or receives or is obligated to pay or

 4   receive or entitled to receive consideration of more than a

 5   million dollars."

 6                     Well, a five-million-dollar buyout provision is

 7   not a provision in which a person has to pay or receive or is

 8   obligated to pay or receive.    His argument is that because it's

 9   a major transaction, that the venue is proper because the

10   document provides that the venue should be in Fannin County,

11   Your Honor.    So, our first argument is that it is not a major

12   transaction.   If you look at the contract for sale, what was

13   exchanged was 21 gold coins in exchange for 30-percent interest

14   into an estate.    Even though I am not -- I'm not certain on

15   what the coins are, they're certainly not worth a million

16   dollars.   Then if you also look at Section 15.020(d) of the

17   Civil Practice and Remedies Code, it provides that "Any section

18   in a contract that applies an action that is unconscionable at

19   the time that it was made, then that venue provision is not

20   respected."

21                     So, again, we have 21 gold coins for 30 percent

22   of the estate.    Which, I believe, a rough estimate, they

23   received maybe several-hundred-thousands of dollars --

24   certainly not a million.    And certainly having a

25   five-million-dollar buyout provision, that seems quite



                             Gale H. Fiasco, CSR
                                (903) 640-6696
                                                                      34



 1   unconscionable to me.   I'll give you 21 coins.     In order to get

 2   out of this contract, you have to give me five-million dollars.

 3                  So, Section 15.035 states that "A contract in

 4   writing" -- "If a person has contracted in writing to perform

 5   an obligation in a particular county, expressly naming the

 6   county" -- which is exactly what this contract states -- "then

 7   the obligation may be brought against him in the county in

 8   which he signed the document or in which the client or the

 9   individual is domiciled."    All of the defendants are in Tarrant

10   County; the notary was in Collin; the contract for sale was

11   recorded in Denton County.    But, again, it says "Fannin County"

12   on the document.   It is not a major transaction.    So, contrary

13   to opposing party, it's not mandatory because it's not a major

14   transaction.

15                  Now, it also provides in (b) of that provision

16   exactly what I had stated, that if a person pays money arising

17   out of transactions or services entitled primarily for

18   personal, family, household, or agricultural use, then that's

19   where the lawsuit should be -- which should be in Collin County

20   or Tarrant County.

21                  Besides those arguments, Your Honor, John

22   Skotnik who originally filed the document -- he filed the

23   document and he is a municipal court judge.    Also, Mr. Skotnik

24   is, I believe, a municipal judge, as well.    May not be in this

25   county, may be in Grayson County.   My clients are highly



                             Gale H. Fiasco, CSR
                                (903) 640-6696
                                                                         35



 1   prejudice by having this in Fannin County.      There's no

 2   connection to this contract for sale in Fannin County.       It was

 3   recorded in Denton.    The individuals have always lived in

 4   Tarrant.    It was signed in Collin County.    And it's just from

 5   the -- from the convenience of the drafter to say it was in

 6   Fannin County.

 7                    So, we respectfully request that this Court --

 8   that this hearing be moved to another county.      And as Your

 9   Honor will no doubt hear multiple times, there is another

10   lawsuit in Tarrant County that's being heard.      It's similar to

11   this case.    It has almost the same players, but it's concerning

12   the actual money that was into a trust.

13                    So, the contract for sale provided that an

14   entity would be created.      That entity is allegedly the GWB

15   trust.    That lawsuit is in Tarrant County.    We would like to

16   consolidate the cases, but of course the cases can't be

17   consolidated once the cases have been transferred.      So, my

18   clients would like this to be transferred to Tarrant County,

19   and if not, then as 15.35 -- I'm sorry -- 15.035(b), it should

20   be either in Tarrant County or in Collin County where it was

21   signed.    Thank you, Your Honor.

22                    MR. SMITH:    Well, the reason I wanted to stick

23   to what was filed is because I think what they filed is

24   different from what you just heard, Your Honor.      The motion to

25   transfer venue before the Court is Pages 3 and 4 of the initial



                             Gale H. Fiasco, CSR
                                (903) 640-6696
                                                                          36



 1   filing they made.    And what they did was, they filed a motion

 2   to transfer for the convenience of the parties.       It's not a

 3   mandatory venue election they're making.       It's not a permissive

 4   venue if they're saying that they can't get a fair trial here,

 5   prejudice in this county is so great they cannot get a fair and

 6   impartial trial.    That's what they're telling this Court is the

 7   basis for why they want their venue changed.       In response, we

 8   did file -- I don't know if you found our response to the

 9   motion to transfer venue.

10                   THE COURT:   I did.   Let me lay my hands on it.

11                   MR. SMITH:   Essentially, we attached the

12   contract that's really the basis of this whole lawsuit and the

13   one in Tarrant County.    I have an extra copy if you'd like it.

14                   THE COURT:   Well, I'll lay hands on it.     I have

15   it.   The one filed September 4th?

16                   MR. SMITH:   Yes, Your Honor.

17                   THE COURT:   Yes, sir.

18                   MR. SMITH:   What we did is, we have attached the

19   actual contract at issue.    And there is a venue provision.       It

20   does specify venue in Fannin County, Texas.       And I've given you

21   the law that says in the instance where it involves in excess

22   of -- I think it's one-million dollars -- that's considered a

23   major transaction.    This contract has a specific buyout of

24   five-million dollars.    Therefore, by its very expressed terms,

25   it does involve a major transaction.     Under that circumstance,



                              Gale H. Fiasco, CSR
                                 (903) 640-6696
                                                                           37



 1   the venue provision in the contract prevails and is not only

 2   permissive, it is mandatory.      I don't think there's any doubt

 3   that this Court has venue and should not transfer venue.

 4                    And just as an aside, the case filed here in

 5   Fannin County was the first filed case.         The case in Tarrant

 6   County was filed second.      So, I don't have a player in that

 7   suit.    I have not participated in those proceedings, but I do

 8   know this is the earlier-filed suit.

 9                    THE COURT:     You have a response, Ms. Lee?

10                    MS. LEE:   I would like to point out that when

11   John Skotnik -- who is the municipal court judge -- when he was

12   the attorney for the defendants, that's when the argument was

13   that there would be a great prejudice in this county, Your

14   Honor.    We did not amend that motion.     But I would just like to

15   reiterate one more time that the law is very clear, it provides

16   that a major transaction is if a person is obligated to pay or

17   entitled to receive consideration in more than one-million

18   dollars.    A buyout provision is not an obligation, it is a

19   buyout.    And that's 15.020.    So, the venue here is not

20   mandatory.   And if you go to -- that's all I want to say, Your

21   Honor.

22                    THE COURT:     Okay.   Does either party have any

23   information about the value of the 21 gold coins filed with

24   anything?

25                    MR. SMITH:     I don't know.    I can represent to



                             Gale H. Fiasco, CSR
                                (903) 640-6696
                                                                       38



 1   the Court that the estates are large estates and I would not be

 2   surprised if there were over a million dollars easily in those

 3   estates that are at issue.

 4                   MS. LEE:    I would disagree, Your Honor.

 5                   THE COURT:   I'm sure there's substantial money

 6   involved.   The question is regarding the actual transaction

 7   that is evidenced by the contract that was signed, not about

 8   the estates, necessarily.    I understand they might be part of

 9   that, but -- I don't see anything that indicates that all of

10   the estates were involved in this contract.

11                   MS. LEE:    They weren't, Your Honor.

12                   THE COURT:   The difficulty is I don't have any

13   information indicating the value of the 21 gold coins.      I mean,

14   depending on what they were.    If they came from a particular

15   shipwreck, they could be worth a million dollars easy.

16                   MR. SMITH:   There's other consideration

17   expressed in the contract.

18                   THE COURT:   Okay.   Well, based on the other

19   information in the case, the Court is going to grant the motion

20   to transfer venue.   I don't like that because I know I can

21   probably resolve this case more quickly than you can get it

22   done over in the neighboring county.    So, personally, I think

23   it would be more efficient here but I think it's appropriate

24   given where the defendants reside and that I don't have any

25   evidence that this is a case that involves more than a million



                            Gale H. Fiasco, CSR
                               (903) 640-6696
                                                                           39



 1   dollars in a sense that the buyout provision -- I don't think

 2   -- rises to that level.      If there's something that can be done

 3   as a result of the ruling on the motion to transfer venue in

 4   the way of an appeal, I'm happy to have somebody correct me.

 5   But, otherwise, that's the Court's ruling.

 6                     MR. SMITH:    Where are you transferring it to,

 7   Your Honor?

 8                     THE COURT:    To Tarrant County.

 9                     MS. LEE:     Your Honor, I do have an order.

10                     THE COURT:    And I believe -- you may have

11   Mr. Smith look at it and see if it comports to the Court's

12   ruling.   And have the clerk's office be notified of this and

13   for you all to work with them to get it transferred as

14   expeditiously --

15                     MS. LEE:   Is this acceptable?

16                     MR. SMITH:    That's fine.

17                     MS. LEE:   May I approach, Your Honor?

18                     THE COURT:    Yes.

19                     MS. LEE:   He approved it, Your Honor.

20                     MR. SMITH:    Your Honor, I assume that would be

21   to a district court in Tarrant County?

22                     THE COURT:    Yes.   I don't know why there would

23   be another one.    I would think it would be a court of the same

24   jurisdiction as this one.       I'm assuming they have civil

25   jurisdiction courts, as well as -- I don't think they have that



                             Gale H. Fiasco, CSR
                                (903) 640-6696
                                                                          40



 1   many general jurisdiction courts, so I'm going to assume it's

 2   going to go to a court with jurisdiction over this matter.          If

 3   they have a general jurisdiction court -- I don't think that I

 4   make the call.   I think what happens is it's just a category of

 5   courts.    As long as they have civil jurisdiction, it will go

 6   into that court.    It might end up being a general jurisdiction

 7   court if Tarrant County has any of those left.      And it will

 8   otherwise go into one that is strictly civil.      The clerk -- I

 9   would assume -- would assign that randomly.      And then the

10   parties will make their arguments over there if they desire to

11   have those combined and what other court.      That would be for a

12   different court to make that decision, not this court.        All

13   right.    Is there anything else that needs to be addressed?

14                    MS. LEE:    No, Your Honor.

15                    MR. SMITH:    I don't think there would be

16   anything else if it's been transferred.

17                    THE COURT:    All right.   Then the other matters

18   will no longer have any setting on the Court's docket and the

19   order has been signed.      And we will have this file delivered to

20   the district clerk -- we'll have the bailiff deliver it and

21   that way, if you all will go to the clerk's office you can

22   obtain your copy today.

23                    MS. LEE:    Your Honor, may I approach?

24                    THE COURT:    Yes.

25                    MS. LEE:    I am so sorry about me talking over



                              Gale H. Fiasco, CSR
                                 (903) 640-6696
                                                                       41



 1   you.    That was so inappropriate.

 2                    THE COURT:   The court reporter can write that

 3   down.

 4                    MS. LEE:   I don't know when I would come in your

 5   courtroom again, but I can assure you I am seriously sincere --

 6                    THE COURT:   I appreciate it.   Thank you.

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



                             Gale H. Fiasco, CSR
                                (903) 640-6696
                                                                               42


 1                                  REPORTER'S CERTIFICATE
 2 THE STATE OF TEXAS           )
 3 COUNTY OF FANNIN             )
 4

 5         I , Gale H. Fiasco , Official Court Reporter in and for the
 6 County Court at Law of Fannin County, State of Texas , do hereby
 7 certify that the above and foregoing contains a true and
 8   correct transcription of all portions of evidence and other
 9   proceedings requested in writing by counsel for the parties to
10   be included in this volume of the Reporter's Record, in the
11   above-styled and numbered cause , all of which occurred in open
12   court or in chambers and were reported by me.
13         I further certify that this Reporter's Record of the
14   proceedings truly and correctly reflects the exhibits, if any ,
15   admitted , tendered in an offer of proof or offered into
16   evidence .
17
                                                           0~_
18

        a
           · ~ TNESS     MY OFFICIAL HAND this the       _......,
                                                               ~---   day of
19     A._-.;_   C'et~
                     ~,
                         bo1    ,    2014 .
20
21                                  .li().Q.~ .1-A:..,.,,lcu-10
                               Gale H. Fiasco
22                             Texas CSR 6268
                               Expiration Date : 12 / 31 / 2015
23                             210 S. Main Street
                               Bonham , Texas 75418
24                              (903) 583-9258
25


                                     Gale H. Fiasco, CSR
                                        (903) 640-6696
PLAINTIFF'S EXHIBIT 16
                                                                                                       Page 1 of 1



Scott Smith

From:       "Scott Smith" <smithlaw@airmail.net>
To:         "Christy Lee" <clee@christyleelaw.com>
Cc:         "Howard Gibbs" <hkgibbs@gmail.com>
Sent:       Thursday, August 21 , 2014 1:36PM
Attach:     14-5-7 Clerk re appearance.pdf; Rule 11 Agreement.pdf; 14-8-12 Motion for Partial Summary
            Judgment. pdf
Subj ect:   Pentex Foundation v. Gibbs, et al.; CV-1 4-41665
Christy,

You probably do not recall, but when I entered my appearance I gave notice of my vacation next month. I am
attaching a copy. The discovery you sent requires a response during that time period. That, and given the
volume of discovery, I am requesting a thirty day extension. If this is agreeable, I am attaching a proposed Rule
11 Agreement to that end. If not, let me know and I can so move the Court.

Also 11 am attachin~ the file-marked Plain • and lnteNe.nor's Mo on for Partial Summary Judgment, w
tompreted FIAT. Note that t - _o on s set for hearing on September 30, 2014. at 8:30 a. .


Scott Smith
Attorney and Counselor At Law
120 South Crockett Street
P.O. Box 354
Sherman, Texas 75091-0354
Facsimile 903.870.1446
Telephone 903.868.8686




                                            •     PLAINTIFFS
                                             i      EXHIBIT
                                             I      16
                                            I    Pentex GBU




                                                                                                                    \

                                                                                                       8/2112014
                                                                                                     Page I of I



Scott Smith

From:      "Christy Lee" <clee@christyleelaw.com>
To:        "Scott Smith" <smithlaw@airmail.net>
Sent:      Friday, August 22, 2014 3:29PM
Subject:   RE: Pentex Foundation v. Gibbs
Scott,

I have not been in my office all day yesterday and am getting to emails now, so I will be responding hopefully by
the end of the day. If I can unable to respond to you before the end of the day, you will have a response by the
end of the weekend.

Christy



Christy lee, ll.M., J.D., M.S.
Law Offices of Christy lee, P.C.
225 E. Fireweed lane, Suite 200
Anchorage, Alaska 99503
Phone: (907) 339-9931
Fax: (800) 437-7901

777 Main Street, Ste. 600
Fort Worth, TX 76102
Phone: (817) 504-6075
Fax: (800) 437-7901

EMail:   clee@christyleelaw.com
Website: www.christyleelaw.com


From: Scott Smith [mailto:smithlaw@airmail.net]
Sent: 08/ 22/ 2014 12:21 PM
To: Christy Lee
Cc: Howard Gibbs; Earl Hargrave
Subject: Pentex Foundation v. Gibbs

Please see attached letter.

Scott Smith
Attorney and Counselor At Law
120 South Crockett Street
P.O. Box 354
Sherman, Texas 75091-0354
Facsimile 903.870.1446
Telephone 903.868.8686




                                                                                                      9/30/2014
                                    SCOTT SMITH
                               A TIORNEY AND COUNSELOR AT LAW


E-MAIL: smithlaw@airmail.net                                    120 SOUTH CROCKETI STREET
FACSIMILE: (903) 870-1446                                                    P.O. Box354
TELEPHONE: (903) 868-8686                                       SHERMAN, TEXAS 75091-0354


                                     August 22, 2014
VIA EMAIL


Christy Lee, Esq.
Attorney At Law
225 E. Fireweed Lane, Suite 200
Anchorage, Alaska 99503

          RE: Family Settlement Agreement.
Dear Christy:

       With respect to you demand for alternative dispute resolution, my clients
Pentex Foundation and Joshua Unger, Trustee of the GBU Friends and
Associates Trust will agree to mediation with a mutually agreeable mediator.
I believe this should be conducted with all parties under the caption of both the
Fannin County and Tarrant County cases so we do not have any loose ends
should there actually be a settlement.

      I also want to reiterate that we disagree that the Fannin County case
involves the estate or that the Family Settlement Agreement provisions have
been implicated. Even if it was, again page 3, section 3.26(a) of the FSA is
clearly permissive, using the word "may." · Section 3 .26(b) follows and states
certain potential results if a "beneficiary" is determined to have engaged in
certain conduct. I ask again, is it your position that the Pentex Foundation
and/or the GBU Trust are a "beneficiaries?"

      Finally, will you be sending the Rule 11 agreement I sent to you
yesterday? I thank you for your attention to this matter.




TSS/bhs




                                                                                            3
cc:   Howard Gibbs
      Earl Hargrave
                                                                                              Page I of I



Scott Smith

From:   "Christy Lee" <clee@christyleelaw.com>
To:     "Scott Smith" <smithlaw@airmail.net>
Sent:   Sunday, August 24, 2014 9:12PM
Scott

I have been unable to speak to my client about your proposed rule II agreement. I will try every effort
to get back to you tomorrow. Christy

Sent from my iPhone




                                                                                              9/30/2014
                                                                                                   Page 1 of 1



Scott Smith

From:       "Christy Lee" <clee@christyleelaw.com>
To:         "Scott Smith" <smithlaw@airrnail.net>
Sent:       Monday, August 25, 2014 10:41 PM
Attach:     Signed Ltr to Scott Smith re ADR and extension for discovery (Walton).PDF
Subj ect:   FSA and Discovery Extension
Scott,

Please see the attached letter in response to your Rule 11 agreement to extend the deadline for discovery and
the FSA mediation.

As you are aware, I am on FMLA, but will continue to be responsive to all correspondence.

Christy



Christy lee, ll.M., J.D., M.S.
law Offices of Christy lee, P.C.
225 E. Fireweed lane, Suite 200
Anchorage, Alaska 99503
Phone: (907) 339-9931
Fax: (800) 437-7901

777 Main Street, Ste. 600
Fort Worth, TX 76102
Phone: (817) 504-6075
Fax: (800) 437-7901

EMail:   clee@christyleelaw.com
Website: www .christyleelaw .com




                                                                                                   9/30/2014
                                                                                  CIIIGl>l'Y L.      L.,;.:
                                                                                     .1 I I IJ/'111'.1


                                                                              225 E. Fireweed Lane, Ste. 200
                                                                                  Anchorage, Alaska 99503
                                                                                         Phone: 907.339.9931
                                                                                           Fax: 800.437.7901

                                                                                     777 Main Street, Ste. 600
                                                                                      Fort Worth, Texas 7 61 02
                                                                                         Phone: 817.504.6075
                                                                                            Fax: 800.437.7901
                                             August 25,2014
                                                                                    clee@christyleelaw .com
                                                                                    www.christyleelaw.com
VIA    Fax: 903-870-1446
       Email

Scott Smith
120 South Crockett Street
Sherman, TX 75091-0354

       Re:     Request for Extension for Discovery
               ADR for Family Settlement Agreement

Dear Scott:

I received your letters concerning ADR and a request to extend the deadline for discovery from
Pentex Foundation and GBU Friends and Associates Trust.

No doubt your clients want to commingle the Tarrant County case and the Fannin County case,
especially since Judge Ferchill's recent ruling. However, the two (2) cases are separate and
cannot be comingled. The Fannin County case is against the Estate of Bert Hughes Gibbs
because the only person who could determine the attorney fees is Ken as Independent
Administrator of the Estate (the "Estate").

Because the FSA involves the Estate, mediation must occur in Tarrant County. We will set this
as soon as possible, even though I am on family medical leave act ("FMLA"). As I have
previously stated, your client will be responsible for its share of the fees associated with the
ADR. As my client believes that the Fannin County lawsuit is a farce, and since you have done
nothing but assist Howard Kirk Gibbs, Howard Kirk will be invited to participate in this ADR.
If you see any issue with approaching ADR in this manner, please let me know as soon as
possible. You and Howard Kirk can provide me a list of three (3) mediators in Tarrant County,
and I will let you know Ken's choice. That seems fair. If you prefer a different way to choose the
mediator, please let me know.

Regarding the discovery requests from Ken to Pentex and GBU Trust: The respective due dates
of September 10 and 11, 2014, were oversights on my part. I apologize for scheduling the
production during your leave. After much persuasion, under the circumstances, Ken will agree to
an extension. However, a thirty- (30-) day extension is excessive. Would either Pentex or GBU
Trust have agreed to a thirty- (30) day extension for my client? Based on developments thus far,
August 25, 2014
Page2
Ken fully anticipates that your clients will object to all discovery requests, provide him with
nothing, and that a motion to compel will be necessary.

My client feels that a fifteen- (15-) day extension is more than reasonable, especially since your
leave is planned for only a little more than a week in early September. Therefore, Ken will
extend the production deadline for both Pentex and GBU Trust to 5:30p.m., Monday, September
25, 2014, provided that both Pentex and GBU Trust will agree in a Rule 11 Agreement that the
hearing September 30, 2014, is to be postponed until after the mediation (or a mutually agreed
upon date). Ken has no issue with rescheduling the hearings on September 30th as soon as
possible, as we are sure the docket is filling up in Fannin County. We also have other motions
that will be filed very shortly and we would like those to be heard on the same day as well.

Under the circumstances, Ken's new deadline is very generous. As I am sure you realize, Ken
has no reason to trust you and does not, in fact, want to offer you any concessions at all,
especially since it was revealed that you agreed to represent Beverly Miller in Tarrant County.
Even Judge Ferchill was shocked at the disturbing news that you accepted the $50,000 retainer
drawn from a GWB Family and Friends Trust bank account. Of course, we have no verification
that you did return the money. Under the circumstances, Ken will not provide a longer extension
than fifteen (15) days for discovery.

Due to yours and your client's past and very recent actions, Ken has very little faith that your
clients will participate in good faith in the mediation, so we need to schedule a time for
depositions for Joshua Unger, Danny Unger, AI Barcroft, and the mysterious person who signed
the engagement letter. When can I schedule the various parties, including AI, for depositions? If
you want to continue to state that you do not represent AI, please put that in writing, yet again.
Obviously, having these depositions back to back would be preferable and please have AI
Barcroft give all the information he has about Pentex Foundation to Danny Unger, since AI has
always been the legal representative of Pentex Foundation (or as Beverly Miller has testified that
Pentex Foundation is AI) and Danny Unger needs to give Joshua Unger all the information
concerning GBU Trust, as Danny Unger was the initial trustee.

Please forward me a Rule 11 Agreement to the extension of discovery and postponing the
September 30th hearing until after the mediation (or call the court and lets agree to a date).
Please provide me all the dates in which you are not available in September and October, and I
will get the mediation scheduled as soon as possible. I suspect it will take the entire day. If you
believe otherwise, please let me know. Also, please provide me a list of "complaints" that your
client has about Ken's administration of the Estate, and also provide my office with a settlement
offer or solutions prior to one (1) week to mediation.

                                                     Very truly yours,
                                                     LAW OFFICES OF CHRISTY LEE, P.C.




                                                     Christy L. Lee
PLAINTIFF'S EXHIBIT 17
Scott Smith #                                                                                       August 21 , 2014 1:41 PM
To: Christy Lee                                                                                                   Hide Details
Cc: Howard Gibbs
Reply-To: Scott Smith
Pentex Foundation v. Gibbs, et al.; CV-14-41665

Christy,

You probably do not recall, but when I entered my appearance I gave notice of my vacation next month. I am attaching a copy.
The discovery you sent requires a response during that time period. That, and given the volume of discovery, I am requesting a
thirty day extension. If this is agreeable, I am attaching a proposed Rule 11 Agreement to that end. If not, let me know and I can
so move the Court.
Also, I am attaching the file-marked Plaintiff's and Intervenor's Motion for Partial Summary Judgment, with a completed FIAT.
Note that this motion is set for hearing on September 30,2014, at 8:30a.m.


Scott Smith
Attorney and Counselor At Law
120 South Crockett Street
P.O. Box354
Sherman, Texas 75091-0354
Facsimile 903.870.1446
Telephone 903.868.8686
                                                    ,   ·-
14·5-7 Clerk re                              1~ 12 Motion for
appearance.pdf    Rule 11 Agreement.pdf   Partial Sum .••dgmentpdf
DEFENDANT'S EXHIBIT A
                                      CAUSE No. CV-14-41665

PENTEX FOUNDATION,                               )                   IN THE DISTRICT COURT
         PLAINTIFF,                              )
                                                 )
vs.                                              }                  336Tif JUDICIAL DISTRICT
                                                 )
KENNETH VERN GmBS; AND                           )
CANDACE GIBDS WALTON: AND                        )
HOWARD KIRK GIBBS,                               )
     DEFENDANTS.                                 )                  FANNIN COUNTY, TEXAS



                      RULE 11 AGREEMENT FOR METHOD OF SERVICE

TO THE HONORABLE JUDGE OF COURT:

        On June 20,2014, this Agreement was entered into by Kenneth Vern Gibbs and Candace

Walton, Defendants: Howard Kirk Gibbs, Defendant, pro se; and Pentex Foundation, Plaintiff;

and GBU Friends and Associates Tt·ust, Intervenor; by and through their respective attorneys and

Howard Kirk Gibbs; and the Parties together hereby submit the following Rule II Agreemcnllo

the Court regarding the referenced case.

         In the effort to conserve resources, the Parties agree to emailed service of all documents

pertaining to the Matter and to acknowledge receipt of the service within one (1) business day by

email or facsimile. If no acknowledgement of the service is fo•·thcoming from the receiving Party

within one (I) business day, service shall be effected in an allemative manner, pursuant to Rule

21 of the Texas Rules of Civil Procedure. However, service shall be deemed completed at the

time the email is sent, except on holidays or weekends, at which time service shall be deemed

completed on the next business day.




                                                                                          •I \
RULE II AGREEMENT FOR METHOD OF SERVICE                                      CAUSH No.   cf"'tlt 41665
Pen/e.'( Foundation ""· Gibbs~~ of.                                                      I' /     -I-
                                           Respectfully submitted,
                                           LAW OFt ICES OF CHRISTY LEE, I)C.



                                           Ry:         GP~-
                                                 Christy L. Lee
                                                 Texas State Bar No. 24052302
                                                 777 Main Street, Ste. 600
                                                 Fort Worth, Texas 76102
                                                 (Rl7) 504-6075 Office
                                                 {800) 437-7901 fax
                                                 clee@christ)•lcelaw.com

                                                  AITOR.J'IEY FOR KENNETH GIBBS AND
                                                  CANDACE WALTON



                                           ---: - -r--,
                                           sY:!4~,.---          ...
                                                 Sco ·mitt
                                                 Texas State Bar No. I 8688900
                                                 120 South Crockett Street
                                                 P.O. Box 354
                                                 Sherman, Texas 75418
                                                 (903) 868-8686 Office
                                                 (903) 870-1446 Fax
                                                 smithlaw@ait1nail.net

                                                 Ari'ORNEY FOR PLAINTIFF AND
                                                 INTERVENOR




                                                 Howard Kirk Gibbs, Pt·o ·se ·
                                                 4360 Western Center Boulevard, Suite 205
                                                 Fort Wo1th, Texas 76137
                                                 (817) 233-4423
                                                 hkgibbs@gmai I.com




RULE\\ AGru:a.IENT FOR METUOD OF SERVICE                                   CAliSE No. CV-l4·4166S
Pe11/q:c Fou11dalion vs. Gibbs el ol.                                                         -2-
                                                                    1



 1                        REPORTER'S RECORD
                              VOLUME 1
 2                TRIAL COURT CAUSE NO. CV-14-41665

 3
     PENTEX FOUNDATION                IN THE DISTRICT COURT
 4           Plaintiff,

 5
     vs.                                  FANNIN COUNTY,    TEXAS
 6
     KENNETH VERN GIBBS and
 7   CANDACE GIBBS WALTON and
     HOWARD KIRK GIBBS,
 8           Defendants.              336TH JUDICIAL DISTRICT

 9

10

11

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

13                   HEARING BEFORE THE COURT ON

14          MOTION TO RECONSIDER ORDER TO TRANSFER VENUE

15                        ******************

16

17

18

19

20

21         On the 12th day of November,    2014,   the following

22   proceedings came on to be heard in the above-entitled

23   and numbered cause before the Honorable Laurine Blake,

24   Judge Presiding,   held in Bonham,    Fannin County,    Texas:

25         Proceedings reported by stenographic method.
                                                  2


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

 2
     Mr. Thomas Scott
 3   SBOT 18688900
     Attorney and Counselor at Law
 4   120 S.  Crockett Street
     Sherman, Texas   75090
 5   (903) 868-8686

 6
     ATTORNEY FOR THE PETITIONER and INTERVENOR
 7
             - AND -
 8
     Ms. Christy Lee
 9   SBOT 24052302
     Law Offices of Christy Lee
10   777 Main Street
     Suite 600
11   Fort Worth, Texas  76102
     (817) 504-6075
12
     ATTORNEY FOR THE DEFENDANTS
13   KENNETH GIBBS and CANDACE WALTON

14

15

16

17

18

19

20

21

22

23

24

25
                                                                                  3


 1                                     VOLUME 1

 2                         HEARING BEFORE THE COURT

 3                                                                  Page   Vol.

 4   NOVEMBER 12     I   2014

 5

 6   Plaintiff's Argument by Mr.                Smith . . . . . . . . 15    1

     Defendant's Argument by Ms.                Lee.               .19      1

 7   Court's Ruling . . . . . . . . . . . . .                      .27      1

 8   Court Reporter's Certificate ..                               .33      1

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25
                     4



 1   EXHIBIT INDEX

 2      (None.)

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25
                                                                        5



 1                         P R 0 C E E D I N G S

 2                   THE COURT:       Have the parties come forward

 3   in Pentex Foundation versus Kenneth Vern Gibbs and

 4   others.    This is CV-14-41665.

 5                   Okay.    I ' l l hear from the attorneys.

 6   We'll start,   Mr.    Smith, with your argument.        I believe

 7   this is your motion.

 8                   MR.   SMITH:     It is my motion,    Your Honor.

 9   And,   for the record,       I'm here representing Pentex

10   Foundation,    the plaintiff,      and Joshua Unger,    trustee,

11   the intervenor.

12                   THE COURT:       Yes,   ma'am.

13                   MS.   LEE:     Your Honor,    I've spoken-- I'm

14   Christy Lee.     I represent Candace Walton and Kenneth

15   Gibbs.    I have spoken with opposing counsel prior to

16   the hearing about a procedural issue,            which I believe

17   that must be addressed prior to listening or hearing

18   the motion to reconsider.

19                   THE COURT:       Which is what?

20                   MS.   LEE:     It is -- under the Rule of 87,

21   Section five of the Texas Rules of Civil Procedure,

22   this Court does not have the power to hear a motion to

23   reconsider on venue,         and I have the law and -- I have

24   case law and statute,        Your Honor,     if you'd like for me

25   to approach.
                                                                              6



 1                   THE COURT:      Have you already shared that

 2   with Mr.   Smith?

 3                   MS.   LEE:    No,   Your Honor.        I    just found

 4   out about this -- Mr.        Smith about half a day prior --

 5   half a business day prior to this hearing,                  he provided

 6   me with a 41-page reply which cited to section -- to

 7   Texas Rule of Civil Procedure 87.            So,   I       just became

 8   aware of this as -- as of this morning,                Your Honor.

 9   But I do have copies for him,           as well as your court if

10   you

11                   THE COURT:      Okay.

12                   MS.   LEE:    If I may have permission to

13   proceed.

14                   THE COURT:      Okay.

15                   MS.   LEE:    May I please approach,            Your

16   Honor?

17                   THE COURT:      You may.

18                   MS.   LEE:    The Texas Rule of Civil

19   Procedure 87,   Determination of Motion to Transfer,

20   Section five,   specifically states that if an action

21   has been transferred to a proper venue,                which this

22   Court      it has happened on September 28th -- in

23   response to a motion to transfer,           then no further

24   motions to transfer shall be considered,                unless the

25   motion to transfer is based on two things.                   One is the
                                                                       7


 1   grounds that an impartial trial cannot be had under

 2   Rules 257 and 259,      which opposing party has not

 3   asserted,   or on the ground of mandatory venue,       which

 4   opposing party did assert in the first motion -- in

 5   the first response to motion for transfer.         This rule

 6   continues to provide that those two exceptions are

 7   only allowed provided that such a claim was not

 8   available to them at the time.

 9                   And,    Your Honor,   I have a copy of their

10   motion       their response to the motion to transfer

11   venue,   and that is exactly what they argued at the

12   last court hearing was a mandatory -- it was a

13   mandatory venue provision.        Then I have case law,     Your

14   Honor.     There's also Marathon Corporation versus

15   Pitzner,    and I've highlighted --your Honor,      may I

16   approach?

~7                   THE COURT:     Yes.

_s                   MS.    LEE:   It's at very back of this case.

19   It's footnote number six.        It cites Texas Rule of

20   Civil Procedure just as I've cited to you,        Your Honor,

21   and then it also states that a motion to reconsider

22   transfer of venue was not proper under the rules,           and

23   a hearing should not have even been granted.         Then I

24   have other cases,      Your Honor.    I have Van Es versus

25   Frazier,    Dorchester Master Limited Partnership versus
                                                                            8



 1   Anthony,    In Re Shell.       And they all provide that a tax

 2   court has the authority to make                 I'm sorry.    Tax

 3   Court,   sorry.     Trial court has the authority to make

 4   only one venue determination.

 5                     And even a case,        In Re Medical Carbon

 6   Research,      and that says,     rule -- venue selection and

 7   Rule 87,    Section five of the Texas Rules of Civil

 8   Procedure does not permit consideration of a motion to

 9   transfer venue.         A trial court has the authority to

10   make only one venue determination.              And this talks

11   about,   because any reconsideration of an order denying

12   the motion to transfer would be void,                that even today

13   if it's even heard,        that it would be voided.          And I do

14   have some of these cases available,             Your Honor,       if you

15   would like to see them.

                       THE COURT:

17                     MS.   LEE:     Okay.    May I approach,    Your

18   Honor?

19                     THE COURT:       Yes.    Anything else on this

20   point,   Counsel?

21                     MS.   LEE:     No,   Your Honor.

22                     THE COURT:       All right.     Your response,

23   Mr.   Smith.

24                     MR.   SMITH:     Yes.    It certainly would've

25   been nice to know this beforehand; however,                I am
                                                                             9



 1   familiar with Rule 87.5,      and you've got to read it

 2   fairly careful because there's two triggers for this

 3   rule to be applied.       The first says,      If venue has been

 4   sustained against a motion to transfer -- that's not

 5   us -- or if an action has been transferred to a proper

 6   county.   That's where we would fall under.              That --

 7   and the reason there's two different ones is because,

 8   until the file is actually transferred,           this rule

 9   doesn't kick 1n.

10                  And this file has not actually been

11   transferred.   That's one of the reasons we got our

12   motion for reconsideration in fairly promptly was so

13   that we could have it intercept the actual act of

14   transferring the file.        And I can see and would hope

15   the Court would make a judicial notice finding that

16   the Court's file appears to still be here in Fannin

17   County,   so it has not actually physically been

18   transferred yet,     so ...

19                  THE COURT:      Okay.       I've got my file.        I

20   think there would always be a copy here,               but I don't

21   see anything indicating the clerk has done any

22   physical transfer of the file.

23                  MR.   SMITH:    So,   if,    in fact,    it has not

24   physically been transferred,         this is still a proper

25   motion.    And the reason for that is obvious.              So we
                                                                            10


 1   can correct any errors if there are -- if,              in fact,       we

 2   can convince the Court there was an error made before

 3   we make an effort to make a petition for writ of

 4   mandamus.      So,   we believe the Court does have

 5   jurisdiction and that you can proceed forward with a

 6   motion.

 7                    MS.   LEE:     Your Honor,    I      I would just

 8   like to --

 9                    MR.   SMITH:     I'm sorry.       One other

10   thought.

11                    MS.   LEE:     Sure.

12                    MR.   SMITH:     In the cases that she's given

13   me,   I   just looked through them real quick.           Every one

14   of these are cases where the motion was denied under

15   that first clause.        So,    that -- when the motion's

16   denied and the order is entered,          that does keep you

17   from filing a motion for reconsideration.               And the

18   reason for that is this:          Under the old rules where we

19   didn't have the statute granting mandamus relief for

20   mandatory venue,       you did not have the right to appeal

21   venue decisions,       and so,    once the order's entered

22   denying it,     you can have your right on appeal and have

23   your remedy later.        But when you've got a situation

24   such as we have where a mandamus is available,                 if we

25   can get to the Court and convince you of the error of
                                                                          11


 1   your ruling,       if you agree with us,          that saves

 2   everybody time,          money,    and judicial resources.

 3                      THE COURT:        Okay.

 4                      MS.    LEE:     Your Honor,    there is one other
 5   case.

 6                      THE COURT:        Okay.

 7                      MS.    LEE:     Besides reiterating that the

 8   case that I did provide -- it specifically states that

 9   a motion to reconsider is not appropriate and that

10   you're only entitled to one bite at the apple.

11   There's also another case which asserts to some of his

12   other arguments.           Can I please approach the bench,

13   Your Honor?

14                      THE COURT:        Yes.

15                      MS.    LEE:     This one is In Re Chester,    and

16   there were so many important parts in this,                I did not

17   highlight it.       But it specifically provides that after

18   30 days of hearing the motion -- after an order is

19   signed,     that the Court lacks plenary power to rule on

20   a motion to reconsider.             And it was very clear that

21   after 30 days -- and,             in this case,    it was a matter

22   of,   I   think,   32 days when the Court heard a motion to

23   reconsider concerning a change of venue,                and it was a

24   mandatory provision in the agreement,                and the Court

25   ruled that it did not have authority because of
                                                                          12


 1   judicial economy and they wanted to make it quite

 2   quick in order to have it heard in another -- in the

 3   appropriate venue.

 4                     So,   that Court asserts     (sic)    Mr.    Smith's

 5   arguments that if there's an error -- and so,                  the

 6   Court does have the power if there was an error,

 7   which,   of course,      we don't believe there was an error,

 8   within 30 days.         And from the research that I did

 9   and I will state that it was not extensive due to the

'0   time constraints and because I was not made aware of

 1   this until I received the reply from Mr.               Scott    (sic),

 2   which,   again,   was half a business day prior to this

_3   hearing,   that there's no extension to the 30 days.

14   So,   this Court only had 30 days if they felt that

15   there was an error.         So,   it is my client's opinion

16   that the Court does not have the power or the

17   authority to even rule on a motion to reconsider the

18   change of venue.

19                     MR.   SMITH:    Again,   looking at this very

20   quickly,   this Chester case looks like the motion was

21   -- I'm going to strike that because I haven't read it

22   carefully.    I don't want to misrepresent it to the

23   Court.

24                     THE COURT:      Okay.    I have two thoughts on

25   this.    I would have liked to have had the hearing
                                                                              13


 1   sooner.     I'm uncertain of why it took the time it did.

 2   I know in the past there's some difficulty of having

 3   the appearance of counsel on certain days,                 so we had

 4   gone through quite amount of pain to make sure we were

 5   accommodating people on that.               I don't know if that

 6   factored into this.

 7                      MR.   SMITH:      I believe it did.        Ms.   Reamy

 8   actually set this hearing,              I think,   when Ms.   Kreider

 9   was out of town,         and Ms.    Lee was not available,          and I

10   accommodated her schedule is what I recall.

11                      MS.   LEE:      I was available within the 30

12   days,    Your Honor,      but he had a trial and he had,             I

13   think,    a CLE.

14                      THE COURT:       So, you're saying he can

15   accommodate your schedule,              but you're not going to

16   accommodate his for purposes of the 30 days?

17                      MS.   LEE:     Oh,   my gosh,   no,   Your Honor.

18   It was set for this day only because he had other --

19   he had other issues.            I mean,    he had pending cases,         as

20   I believe maybe a CLE,            or he had a trial.       I wasn't

21   sure.

22                      THE COURT:       Do you think there's a -- do

23   you think there's a timeframe for correcting the

24   Court's ruling by way of mandamus?                 You think he can't

25   do that after he's filed this motion?
                                                                           14


 1                     MS.   LEE:    Absolutely.     He -- he has --

 2   there's that avenue.           He is able to file a mandamus,         I

 3   believe.

 4                     THE COURT:      So,    if it was outside the 30

 5   days and I don't rule on it,             the higher court has the

 6   ability to mandamus me and make me do it,               but you're

 7   saying I don't have the ability to hear the case

 8   myself and correct a mistake.

 9                     MS.   LEE:    No,    Your Honor.     I please stand

10   corrected.       From my understanding from the research I

11   did -- and like I stated,             it was not extensive -- if

12   it's outside the 30 days,             there is not -- there's not

13   a discretion.       That -- that was my understanding.

14   Again,    I   -- I did not do extensive research on that.

15   If you would like to-- I'd just like that for the

16   record.       We can proceed.         I believe that we went on

17   the merits of the case.

18                     THE COURT:      Okay.     Well,    let's -- let's

19   go ahead and have the hearing.              If the higher court

20   wants to do something different,             they have the ability

21   to correct anything that I've made a mistake on,

22   because I think it's important to try to get it done

23   right the first time,          and that's why I granted the --

24   the hearing opportunity on the motion to reconsider.

25   I'm going to overrule the objection to having the
                                                                                15



 1   hearing based on the fact that this is a -- this is,

 2   in my opinion,       to reconsider if I have missed

 3   something legally that is required.                And,    therefore,      I

 4   want to go ahead and proceed with the reconsideration

 5   of the motion to           of the motion,        itself,    to transfer

 6   the venue.     So,     you may proceed on your request,

 7   Mr.   Smith.

 8                    MR.    SMITH:      Thank you,    Your Honor.        And

 9   for the clarity of the record for what we just

10   discussed,     is it the Court's finding that there has

11   not been a physical transfer of the file?

12                    THE COURT:         Yes.

13                    MR.    SMITH:      Thank you.     And I appreciate

14   you having a hearing on this,              Your Honor.     After the

15   last hearing,      clearly, we disagreed with the Court's

16   ruling on venue.        That's what courts are for.             We

17   understand that.        But we looked at our remedies and we

18   saw that there is a statute that allows mandamus on a

19   mandatory venue ruling.          And so,      before we went to

20   that effort, we thought it would be prudent to come

21   back to the Court and see if we could re-examine the

22   ruling to see if,        in fact,    we are correct.

23                    Now,    what is this?        This is not a new

24   motion.    We could not even bring another motion for

25   venue.    Venue,     as you know,      is determined as a matter
                                                                       16



 1   of primary       it's a primary determination.     You

 2   determine venue before you move on to other things,

 3   and,   because of that,    the hearing that we had on

 4   September 30th was a fixed date for evidence.        And I

 5   say this because the response which was filed by the

 6   defendants brought in a bunch of new evidence,       and we,

 7   ln turn,   felt like we had to respond with that with

 8   our reply.    I really don't think that's important

 9   because the facts that we are going to be arguing

10   about were fixed on September 30th.       We're simply

11   asking that you re-examine those facts because I think

12   that's sufficient to make a ruling that we can all

13   live with.

14                  So,   what was the venue evidence that was

15   before the Court?     And I'll take you to Rule 87.3,         and

16   it may actually be ln what Counsel handed out.           I

17   don't know.    But what it says is, All venue facts when

18   properly pleaded shall be taken as true unless

19   specifically denied by the adverse party.        And what

20   did we have when we came here on September 30th?             We

21   had attached the contract to the petition.        It was

22   asserted in the petition that all parties agreed in

23   writing that any dispute would be performable in

24   Fannin County,    Texas.

25                    In the response to the motion for venue,
                                                                          17



 1   we attached the contract once again and specifically

 2   pleaded paragraph four which references the

 3   liquidated-damages provision of $5 million,               and none

 4   of this was ever denied.           So,    those facts by rule were

 5   taken as true.

 6                   Now,    I've got a case here,         a copy for

 7   Counsel.    What I've done is I've excerpted the

 8   paragraph of the contract at issue.

 9                   THE COURT:        Thank you.

10                   MR.    SMITH:     And then there's a case

11   called Spin Doctor.        That's actually the case name.

12   I'm not making light of the fact that it's called Spin

13   Doctor.    And what it says is,           you look at the face of

14   the document.       You don't look outside the document.

15   You look at the face of the document.                And this is

16   what the statute says,          too.     And,   in Spin Doctor,    the

17   agreement says,       The agreement attached to the motion

18   to transfer venue lists annual sales of over $1

19   million.    Thus,     on its face,       it constitutes prima

20   facie evidence of a major transaction within the

21   statute.

22                   And I ' l l be candid with you,         Your Honor,

23   there's not a whole lot of cases talking about what a

24   major transaction is.           There's very few,      and the ones

25   that do,   mostly just parrot the statute.              But I
                                                                        18


 1   thought this was a pretty compelling one,             because it

 2   says you look at the four corners of the document,                and

 3   if it references consideration in excess of a million

 4   dollars,    the inquiry    lS    over.   Your prima facie case

 5   is met.

 6                   Here,    this contract says,     the liquidated

 7   damages,    should you breach,       is $5 million,    and that

 8   says it's in full settlement of all consideration on

 9   the Gibbs'    claims.     Now,    why is that important?     I've

10   got another handout.        I've cited the statute here,          and

11   it says,    basically,    if consideration is at a stated

12   value of excess of one million,           that's a major

13   transaction.

14                   I said, Well,       what is -- what is

15   liquidated damages action doing for us?            So,   I pulled

16   the supreme court case of Flores,           and it says,

17   Liquidated damages refers to an acceptable measure of

18   damages that parties stipulate to in advance that will

19   be assessed in the event of a contract breach.

20   the parties here stipulated to a specified amount --

21   $5 million -- and said this is adequate consideration

22   for this contract in the event of a breach.              Thus,    on

23   its face,    the contract says it's in excess of a

24   million dollars.

25                   I also note that these type of clauses
                                                                           19


 1   are favored in the courts.              The supreme court has said

 2   in 2006 that we encourage these type of clauses

 3   because the parties,           by gosh,   they know what they're

 4   doing,    they should be able to give effect to their own

 5   agreements.     And so,        the Texas law encourages

 6   enforcement of these agreements.

 7                   So,     for all these reason,         Your Honor,    we

 8   believe this is a major transaction; we believe that

 9   it's,    on its face,    in excess of a million dollars; we

10   believe the Texas law encourages enforcement of these.

11   We believe that we came at you pretty fast and furious

12   in the last hearing and maybe that wasn't made very

13   clear,    but we feel like you have an opportunity to

14   restore venue to Fannin County,             Texas,    the county

15   where the parties stipulated and agreed venue should

16   be,   and that we can move on down the road with this

17   litigation.     Thank you for your time.

18                   THE COURT:         Thank you.

19                   Counsel.

20                   MS.   LEE:       Yes,   Your Honor.     And I also

21   have some cases,      Your Honor.         The first one -- may I

22   please approach?

23                   THE COURT:         Certainly.    Thank you.

24                   MS.     LEE:     In Re Togs Energy specifically

25   states,    Your Honor -- it states obviously the statute,
                                                                          20


 1   the 15 --    the 15.020.        But here's the -- with all due

 2   respect to Mr.    Scott,    I    don't think he understands the

 3   concept of the consideration.           It is very clear that

 4   in the contract,      it has to have a     aggregated stated

 5   value,    and in the agreement in every case,            even the

 6   one that he cites -- the Spin Doctors -- Your Honor,

 7   it stated that it was a million dollars.             There's no

 8   case that says that liquidated damages,            which is a

 9   buy-out provision,       is considered an obligation to pay.

10                   The actual provision for a major

11   transaction is that a person pays,          receives,      or

12   obligated -- obligated -- to pay or receive.                You are

13   not obligated to pay liquidated damages.

14   Consideration with an aggregated stated value,                  and as

15   Mr.   Smith stated,     it has to be in the four corners of

16   the contract.     You actually have to have that amount

17   of money for over a million dollars.             It has to be

18   stated.     It cannot be,       how much could that possibly

19   be.

20                   Also,    ln In Re Togs Energy,      it stated

21   that affidavits or anything else is absolutely

22   irrelevant.     They're not even going to consider it

23   because it does not       -- because it doesn't contain a

24   major transaction in an affidavit.           I   mean,   you only

25   look to what the contract states.
                                                                            21



 1                      Now,    again,   in the Spin Doctors Golf as

 2   co-counsel -- opposing counsel has already talked

 3   about,    Your Honor,       they quote the agreement as listed

 4   annual sales of over a million dollars,              and the Court

 5   held,    as he said,       the prima facie evidence of a

 6   transaction.        But they leave out extremely important

 7   language.        The Court in Spin Doctors emphasized that

 8   Paymentech,       by contrast to the Texas Association of

 9   School Boards case,          was obligated to pay.      They

10   absolutely had to pay the funds to Spin Doctor as it

11   received data from the credit card sales.               Paymentech

12   did not assume any risk.            No risk.    No liquidated

13   damages.     Nothing.        It was an absolute obligation.

14   The written agreement actually said that the credit

15   card sales was valued at about 5 million.               That was

16   the obligation to pay.

17                      Once again,      our case is very different

18   because Al Barcroft,          when he signed -- drafted and

19   signed the contract for sale,           he assumed a risk,       and

20   the buy-out provision did not create an obligation.

21   Now,    Candy,    Ken,    and Howard Kirk,     they didn't have to

22   buy him out.        I mean,    again,   it's a buy-out provision,

23   so he may never have received anything.               As do we

24   point out on paragraph six of Howard Kirk Gibbs'

25   affidavit in the opposing parties'              reply, Al was
                                                                         22


 1   taking a big risk.       That's what he states.         He's

 2   taking a big risk to help us.         So,   again,    a risk with

 3   no obligation that was created for the Gibbs to have

 4   to pay him anything.       They've not cited to any case,

 5   showed any obligation that there's more than $1

 6   million that needs to be paid.

 7                   So,    we need to talk about,        like,    what is

 8   consideration,    because I think that seems to be an

 9   issue here.     Consideration is what -- is the something

 0   that you receive in return and each side promises to

11   pay.   So,   in the contract for sale, Al Barcroft

12   promised to give his silver coins,           21; his services,

13   which included providing legal services; and acquire

14   legal counsel at his own expense.            This was not

15   valued,   Your Honor.     There was no value in the

16   contract.     Those three things were his consideration.

17   That is what has -- those have to be valued.                 And then

18   the 30 percent of absolutely everything that my client

19   -- and I will go through that in a minute.              But the 30

20   percent of everything that Ken,        Candy,    and Howard Kirk

21   were possibly going to get from the Gibbs,             that was

22   their consideration.       And,   again,    Your Honor,      that was

23   not provided for.       There was no value on that one.

24                    So,   on the face of the document,           there is

25   no -- I mean,    I have the Spin Doctors case.               I read it
                                                                            23


 1   extensively.    Again,    ln that agreement,         it stated that

 2   the total sales were 5 million.              That was in the

 3   contract.    There is not one case -- and I            can say that

 4   wholeheartedly because I have read every single case

 5   to my knowledge concerning a motion to transfer and

 6   major transaction.       There's not one case concerning a

 7   buy-out provision or liquidated damages that require

 8   an obligation to pay,          and,   therefore,   make it a major

 9   transaction.

10                   Now,    Your Honor,        in the alternative,    if

11   you believe -- if the Court believes that the $5

12   million liquidated damages or the affidavits and the

13   checks and other things that they're alleging to be

14   true -- if you believe that that happens to be a

15   million dollars and,          therefore,    a major transaction,

16   there is       in the alternative,          I'd like to argue that

17   there is an exception to the mandatory venue

18   provision.     That is Section 15.020(d)

19                   MR.    SMITH:     And,   Judge,    this is where I

20   was talking earlier about this is getting outside the

21   scope of our hearing because we're not starting a new

22   hearing.     We're examining the hearing that we had,             and

23   this evidence of brought forward new after the fact.

24   So,   we would object to the presentation.

25                   MS.    LEE:     Your Honor,     this is exactly
                                                                                 24


 1   what I    argued in my other hearing.                 Identical.     I've

 2   not changed my argument.

 3                     THE COURT:      I'm going to allow for the

 4   argument.       I won't allow for anything outside of what

 5   had been argued the last time.                    You may proceed.

 6                     MS.    LEE:   So,    the -- that provision

 7   states that a mandatory venue provision does not apply

 8   to an action if the agreement is -- was unconscionable

 9   at the time it was made.              We          our two arguments,

10   which we argued before,          was,       it was grossly one-sided

11   and the unauthorized practice of law.                       And Al Barcroft

12   drafted the contract for sale for his own accord,                        and

13   he's the beneficiary.           He would receive something as a

14   benefit.       The grossly one-sided argument is 21 junk

15   coins which my client has -- which we did discuss at

16   the last hearing            21 junk coins that happen to be of

17   nominal value -- we don't know what the value is,                        Your

18   Honor,    at that time          and,       in exchange,       he would

19   he would receive -- Al Barcroft would receive a whole

20   lieu   (sic)    of things including inheritances from any

21   form that were received by my clients now and in the

22   future.     It's in the contract.                 It's actually in

23   paragraph one.          There's about,        I    think,    seven to nine

24   different things of what he's going to receive in

25   exchange for what he provided.
                                                                        25


 1                   So, practicing law without a license is

 2   considered a misdemeanor           a Class-A misdemeanor

 3   and also,    in my opinion,     considered fraud.       The courts

 4   are very clear that you can't draft a contract in

 5   which you're going to be -- draft a contract as a

 6   practicing law without a license and reap a benefit

 7   from it.

 8                   And my clients -- my clients and the

 9   defendant live in Tarrant County.             Everything is in

10   Tarrant County.       Absolutely everything.         There is

11   nothing that is here.          Even the -- and to my-- I'm

12   not quite       well,   the defendants,       I don't even think

13   they live in Fannin County.         And they could.         You can

14   correct me if I'm wrong.         But everybody is in Tarrant

15   County,    and the appropriate venue is Tarrant County.

16                   THE COURT:       All right.     Thank you.

17                   Any final rebuttal?

18                   MR.   SMITH:     Your Honor,    I   really feel

19   like I need to respond to some of that,             but I   feel

20   like it's outside the record for what we're doing

21   today.     I could spend a fair amount of time rebutting

22   what she just said,      all of which was contained in her

23   response that she filed after you transferred the case

24   or after you have entered the order,            because what they

25   actually filed beforehand was four paragraphs in their
                                                                               26


 1   original answer,        none of which talk about what she's

 2   talking about.         It talked about being inconvenient.

 3   It didn't talk about unconscionable contracts.

 4                      I really hate to get into that because I

 5   think it's a red herring,           and I    think I ' l l stand by

 6   what I   said;   and,    that is,    you look at the four

 7   corners of this contract,           it's stating an aggregate

 8   value,   and the reason that is,            is to make sure we have

 9   a major transaction,        and it states the venue -- the

10   parties'   agreement to have venue in Fannin County,

11   Texas,   and so,    unless you want to hear a response to

12   that reply         or a reply to that response,             I ' l l lay

13   that with the Court's file.

14                    THE COURT:      Okay.       My focus has been on

15   whether the buy-out provision that the $5 million

16   stated is an obligation or not.               Is there any

17   anything else that you would offer there,               Mr.     Smith,

18   to clarify?      An obligation of the contract.

19                    MR.    SMITH:   Yes.       I mean,   I'm       I may be

20   repeating myself,        but it says that liquidated damages

21   are created by the parties to ascertain the amount of

22   the contract when it's difficult to come up with an

23   amount of the contract.          That's what they did here.

24   The law encourages liquidated damages.                It's stated in

25   black and white on the contract,              so I believe that's
                                                                          27


 1   an obligation to pay as stated in the 15.020.

 2                   THE COURT:     Okay.     Okay.    The    I   I




 3   having reconsidered my order,          will make the ruling

 4   that the venue in this case should not be transferred

 5   to Tarrant County.      We need to go ahead and get a

 6   scheduling order in place and pick some dates certain.

 7   There were some motions that were filed and we need to

 8   address that.

 9                   MS.   LEE:   Your Honor,    I will be filing a

10   mandamus.

11                   THE COURT:     I figured I'd get it one way

12   or the other,   so -- both of y'all are very articulate

13   and very good advocates,      and I'm happy to have a

14   higher court review this as we might need to go along

15   our way.

16                   MS.   LEE:   So,   Your Honor,    I respectfully

17   request not to get back on the docket or scheduling so

18   I can get that filed.

19                   THE COURT:     Well,    what I want to do is,           I

20   want to go ahead and pick the dates before y'all walk

21   out,   and then in the event you file it,          which I have

22   no doubt you will -- but when you do,            then it will

23   abate our hearings until they actually take the action

24   that they might need to take.           And they're very,        very

25   quick about these matters,         and I would expect,       then,
                                                                        28


 1   whatever we had scheduled that got abated would be

 2   just reinstituted.        So,     I'd like y'all to pick dates

 3   that are reasonable.

 4                     MS.   LEE:     And,   Your Honor,   just for

 5   clarification,     did you          is it your determination

 6   that that buy-out -- the $5 million liquidated damages

 7   is -- makes it a mandatory venue?

 8                     THE COURT:       That was the part that I was

 9   focusing on last time.           When I made the decision to

10   transfer it,      I was -- I have reconsidered that,         but

11   any provision that allows or provides for the matter

12   based on the limited evidence that was presented to

13   the Court -- I'm trying to make the decision based on

14   the contract that was there,            which I   think is all I

15   can make it on.         Not all of the extraneous evidence

16   that everybody is offering after the last ruling,

17   so ...

18                     MR.   SMITH:     I will prepare an appropriate

19   order and circulate it to Counsel.

20                     THE COURT:       Okay,   what I want y'all to

21   do,   then,    is go ahead and pick those dates with the

22   Court's coordinator,           and then when we get the other

23   motion -- so,      if you'll pick them to be reasonable

24   dates that might happen to be outside of about 30 to

25   45 days,      which is probably about how long the Court
                                                                        29


 1   will take to make this ruling.

 2                   MR.   SMITH:   Are you asking us to pick a

 3   trial date and move forward or just dates for the

 4   hearings that we had set before?

 5                   THE COURT:     Both.    I   think we need an end

 6   date that the parties can expect.           This matter's been

 7   a bit protracted for a variety of reasons,             the least

 8   of which is not -- it is the fact that it's a

 9   complicated case,     and I understand that.          There's a

10   lot at stake and a lot of emotion.           I   think the

11   parties need to get the thing resolved,            and that is

12   one thing that we can accomplish is getting some

13   closure.

14                   MR.   SMITH:   Well,   Your Honor,      we have

15   discussed -- I know you ordered mediation last time.

16   We've discussed mediation and it hasn't really gotten

17   any traction.     It might be helpful if you order us to

18   mediation.

19                   THE COURT:     Okay.    I would also expect

20   you still select the final hearing date,            the pretrial

21   date.   The Court will order mediation,           and I ' l l

22   appoint Judge Curt Henderson.          He's a retired judge

23   from the 219th District Court.          You can get online and

24   he -- you can electronically set up the date certain

25   that you want to select.       He'll meet down in Collin
                                                                               30


 1   County,   so i t ' l l be in between the two locations to

 2   some degree.       And he has the most years service as a

 3   judge in Collin County's history,              so he will be very

 4   knowledgeable.          I think when he took          either when he

 5   took the bar exam or the board certification exam,                    he

 6   got the top score in the State of Texas that year.                        He

 7   should prove to be very informed,              very helpful,       and he

 8   is,   in my opinion,      young.      He is,   I think,     60   or 61.

 9                     MR.    SMITH:     Thank you for finding that,

10   Your Honor.

11                     THE COURT:        That's young.     So,    it's not

12   like he's -- you know,            he's going to be on it and he's

13   up-to-date with technology issues and things of that

14   nature.    So,   all of your communication -- he does a

15   lot electronically,         and he drafts final mediation

16   agreements,      I think.       He's very good about letting us

17   know.

18                     We need to pick a mediation deadline

19   date,   as well.        I'd like the parties to have that

20   accomplished within -- 120 days should give the higher

21   court the time they need to rule.                Do y'all think

22   that's reasonable,        120 days?      Four months out?

23                     MR.    SMITH:     Certainly.

24                     MS.    LEE:     That's fine.

25                     MR.    SMITH:     And I would also like to
                                                                           31


 1   state for the record,       Mr.   Howard Kirk Gibbs,        the pro

 2   se defendant,    is here,    as well.       So,   I   think that's

 3   all of the parties.

 4                   THE COURT:        Okay.     So,   I need to make

 5   sure all of the parties have all of this information

 6   before they go.     I want everybody to know.              Nobody

 7   needs to be in the dark.          We need to go ahead and get

 8   some resolution for everyone.             And so,     when you see

 9   the Court's coordinator,          before anybody leaves,

10   they're going to receive those dates.                 It will be the

11   final hearing date.     If it's a jury,           which I'm

12   assuming,    we'll go ahead and put it on the jury trial

13   docket.     We'll have -- pretrial will be aboui a month

14   preceding that.     Pick a timeframe that y'all think is

15   reasonable to accommodate your issues of discovery

16   that you might have,    and we will do everything that we

17   can to give your case the highest priority.

18                   Every case that's set on the civil docket

19   1s likely       they all resolve,          so your case is likely

20   to be the one that goes,          so don't think it's going to

21   get reset.     It will be the one that goes,             so pick a

22   real date,    a meaningful date for you.              Have the

23   mediation about 120 days out,             and include in the order

24   that you submit on the scheduling order a separate

25   document appointing Judge Henderson so we can get that
                                                                   32


 1   off to him ASAP,     and he'll know to expect you all to

 2   contact him.   But the way you'll contact him is

 3   directly yourselves electronically on his website.

 4   Ms.   Kreider can give you the information on how to

 5   contact him.

 6                  MR.   SMITH:   May Mr.   Gibbs come back with

 7   us?

 8                  THE COURT:     Absolutely.    All right.   I   do

 9   appreciate y'all's time and patience with the Court.

10   Thank you.

11                  (End of proceedings.)

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                                                                        33


 1   THE STATE OF TEXAS

 2   COUNTY OF FANNIN

 3        I,   Charla Reamy,       Official Court Reporter in and for

 4   the 336th District Court of Fannin County,              State of

 5   Texas,     do hereby certify that the above and foregoing

 6   contains a true and correct transcription of all

 7   portions of evidence and other proceedings requested

 8   in writing by counsel for the parties to be included

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

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

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

12        I    further certify that this Reporter's Record of

13   the proceedings truly and correctly reflects the

14   exhibits,     if any,     admitted by the respective parties.

15       WITNESS MY OFFICIAL HAND this the 8th day of

16   December , A . D . ,   2 0 14 .

17

18
                                       _Qb~R~---
                                       CHARLA REAMY, Texas
                                                           -- -----
                                                              R 6361
19                                     Expiration Date:  1 -31-16
                                       Official Court Reporter,
20                                     336th District Court
                                       Fannin County, Texas
21                                     Bonham, Texas 75418
                                       (903) 583-2863
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