in Re Daniel W. Warren, Beneficiary of the Daniel Steven Weiner 1996 Trust

• Court: Court of Appeals of Texas
• Decided: May 26, 2015
• Docket: 01-15-00471-CV
• Status: Published

Opinion

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

1 REPORTER'S RECORD

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

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

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

11 DANIEL WARREN'S PLEA TO THE JURISDICTION

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

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

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

19 numbered cause before the Honorable Christine Butts

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

21 County, Texas: EXHIBIT exhibitsticker.com

22 TAB E-1 23

24 Proceedings reported by Machine Shorthand

HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER 2

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

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

HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER 3

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

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

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

HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER 4

1 May 13, 2015

2 PROCEEDINGS

3 THE COURT: Calling to order Cause Number

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

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

6 Jurisdiction.

7 MS. CANTRELL: That is correct. Are we

8 ready to proceed?

9 THE COURT: Yes, we are.

10 DANIEL WARREN'S PLEA TO THE JURISDICTION

11 ARGUMENT BY MS. CANTRELL:

12 MS. CANTRELL: Well hopefully this will be

13 the easiest of the three Weiner Trust cases.

14 This case involves a nonsuit at a time

15 where there were no outstanding claims of any kind.

16 Daniel had sued Andy Weiner, and Katherine

17 Warren was a Respondent in that. He nonsuited Katherine

18 Warren. So, she was out.

19 Andy Weiner had affirmative defenses but

20 no counter-claims against Daniel.

21 Andy Weiner had cross-claims against

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

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

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

25 under Greenberg versus Brookshire, the case was over.

HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER 5

1 All the controversies were settled; all the cllaims were

2 gone and the parties were gone.

3 I would like to go ahead and irtroduce as

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

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

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

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

8 granting his nonsuit and dismissal. His nonsuit was

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

10 counter and cross-petition was March 24th.

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

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

13 those as three distinct exhibits because I'm quite

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

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

16 easier to refer to each document separately in the

17 record if that's okay.

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

19 We'll mark those Exhibit 1 for the notice

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

21 for the counter and cross-petition.

22 THE COURT: Exhibit 1 which is

23 Petitioner's Notice of Nonsuit Against Andy Weiner is

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

25 the Order Granting Petitioner's Nonsuit and Dismissal,

HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER 6

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

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

3 Plaintiff's Exhibit 3.

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

5 Exhibit 4 which is Andy Weiner's Second Amenced

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

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

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

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

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

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

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

13 David's case only.

14 MS. PACHECO: I have no objection.

15 MS. CANTRELL: Okay.

16 THE COURT: Okay. Andy Weiner's Second

17 Amended Cross-Claims Against Katherine Warren Formerly

18 Known As Katherine Weiner is admitted as Plaintiff's

19 Exhibit 4.

20 MS. CANTRELL: And because I think there

21 might be a dispute over whether that -- those

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

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

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

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

HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER 7

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

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

3 those cross-claims were not moved.

4 MS. PACHECO: No objection.

5 THE COURT: Okay. The Amended Order On

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

7 5.

8 MS. CANTRELL: And the only otter one that

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

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

11 to sever in that itemized list of documents tecause it

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

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

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

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

16 we went back and forth with certain changes to the

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

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

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

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

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

22 protect the order?"

23 So we all, I believe, had ample

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

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

HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER 8

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

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

3 series of emails between Counsel and your court staff

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

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

6 doesn't constitute anything but the efforts of lawyers

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

8 itself.

9 MS. CANTRELL: I would agree to leave it

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

11 not in Daniel's case.

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

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

14 record speaks for itself.

15 MS. CANTRELL: The record is conflicting,

16 then, because the response says that they are before

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

18 they're not.

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

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

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

22 "All prior motions, discovery crders,

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

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

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

HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER 9

1 court staff who are trying to be helpful but certainly

2 weren't shepherding responsible a ruling on these

3 matters is any way relevant to the appellate record in

4 this case.

5 MS. CANTRELL: Then I would point out that

6 prior discovery, orders, motions, responses and answers

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

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

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

10 not admitting the emails.

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

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

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

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

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

16 appellate court to determine where somebody is going to

17 go.

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

19 able to admit Exhibit 6.

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

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

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

23 where there is a nonsuit and there are no outstanding

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

25 Katherine and the counter and cross-petition was filed

HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND R,PORTER 10

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

2 supreme court case of Greenberg versus Brookshire. And

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

4 kinds of cases. Greenberg versus Brookshire was a

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

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

7 Fifth Circuit Court of Appeals, the federal courts.

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

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

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

11 the supreme court mandamused the judge - it was a

12 district court judge in Jefferson County - and said,

13 "Halt. The case is over."

14 And I submit that our case is Greenberg

15 versus Brookshire on all 4's.

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

17 THE COURT: Certainly.

18 DANIEL WARREN'S PLEA TO THE JURISDICTION

19 ARGUMENT BY MS. PACHECO: I

20 MS. PACHECO: I think the fundabental

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

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

23 probably the most convoluted procedural case ~'ve ever

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

HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER I 11

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

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

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

3 !

!

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

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

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

7 substantial money invested in the education of this

8 Court and rulings obtained by this Court, had the

9 absolute right to, himself, institute a lawsuit and

10 proceed on that lawsuit to resolve the very issues they

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

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

13 I'll take the simple answer first.

14 When we filed days after she filed her

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

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

17 that because of the convoluted procedural nature of this

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

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

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

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

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

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

24 through private process."

25 We treated this suit to be careful as a

HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER 12

1 newly-instituted lawsuit which that jurisdiction

2 reattaches to this court on the moment the pleading is

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

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

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

6 a nonsuit and then when we came down and got

7 affirmative relief against Daniel, which is what

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

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

10 reinstitute a lawsuit in the same cause number which

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

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

13 original number.

14 We instituted a new lawsuit and

15 immediately attempted to effectuate service.

16 When they evaded it nine times, this Court

17 entered a substituted service order. This Court had

18 absolutely every right to do that because every court

19 has jurisdiction to enter a substituted order when a

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

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

22 In Greenberg, after the party dismissed,

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

24 rulings because I would agree in that case the parties

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

HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER 13

1 happened in this case since the readmission of this

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

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

4 gotten to any affirmative rulings. They will be a

5 party.

6 Greenberg is completely irrelevant to this

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

8 done nothing other than approved substituted service

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

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

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

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

13 The supreme court in Zachary versus Lane

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

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

16 second the pleading is filed? The supreme court looked

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

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

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

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

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

22 substituted because they evaded.

23 But in that case, the supreme court said

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

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

HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER 14

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

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

3 they said:

4 "The supreme court does not hold that a

5 named defendant is not a party until that person is

6 served except to waive service."

7 Well it's true the party may be served

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

9 judgment to be rendered against them; nevertheless, it

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

11 they have been specifically named.

12 Another case out of Corpus Christi,

13 Christus Health versus Ragsdale, also a 2001 case,

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

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

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

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

18 Christi -- Christus Health versus Ragsdale.

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

20 real issue here.

21 She does not like that when she was

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

23 wasn't going away and reinstituted the very same

24 affirmative claims in this suit that they have been

25 bringing this whole time, construction of the trust.

HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER 15

1 So, I just disagree wholly that her cases

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

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

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

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

6 here.

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

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

9 be deemed a new lawsuit.

10 I have a few exhibits to put in the

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

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

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

14 I'm offering as Exhibit A, and I

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

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

17 Termination of Trust originally filed by Katherine

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

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

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

21 exhibits attached.

22 MS. CANTRELL: That's fine.

23 THE COURT: The Original Petition For

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

25 objection?

HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER 16

1 MS. CANTRELL: No objection.

2 THE COURT: Is admitted as Respondent's

3 Exhibit A.

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

5 offer as Exhibit B, the First Amended Original Petition

6 For Modification of Trust and Response To Plea and

7 Abatement and Plea To The Jurisdiction filed by

8 Katherine Warren as next friend of Daniel Weiner on

9 November 4th of 2013, Your Honor.

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

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

12 those in Cause 425.576?

13 THE COURT: Yes.

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

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

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

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

18 MS. PACHECO: I just want to show the

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

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

21 Court, Your Honor.

22 THE COURT: The first amended -- so are

23 you --

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

25 THE COURT: withdrawing your objection?

HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER 17

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

2 THE COURT: Okay. The First Amended

3 Original Petition for Modification of Trust and Response

4 To Plea and Abatement and Plea To The Jurisdiction is

5 admitted as Respondent's Exhbit B.

6 MS. PACHECO: Thank you, Your Honor.

7 And I offer as Exhibit C, the Original

8 Petition In Intervention filed by Daniel Steven Weiner

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

10 MS. CANTRELL: No objection.

11 THE COURT: The Original Petition In

12 Intervention is admitted as Respondent's Exhibit C.

13 MS. PACHECO: Thank you, Your Honor.

14 I offer as Andy Weiner's Cross-Claims

15 Against Katherine Warren Formerly Known As Katherine

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

17 MS. CANTRELL: No objection.

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

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

20 admitted as Respondent's Exhibit D.

21 MS. PACHECO: Your Honor, I offer into

22 first supplement -- First Supplement To Original Answer

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

24 MS. CANTRELL: No objection.

25 THE COURT: The First Supplement To

HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER 18

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

2 MS. PACHECO: Thank you, Your Honor.

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

4 Probate Courts of Harris County, Texas approved by the

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

6 March 8 of, 2007.

7 MS. CANTRELL: May I see those? Which

8 rules are those?

9 MS. PACHECO: Yes.

10 MS. CANTRELL: Oh, the probate courts.

11 Good. Thank you.

12 THE COURT: The Rules of The Probate

13 Courts of Harris County, Texas, are entered as

14 Respondent's Exhibit G.

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

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

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

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

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

20 THE COURT: It is.

21 MS. PACHECO: Thank you.

22 And finally as Exhibit H, I offer

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

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

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

HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER 19

1 County and assigned to District Court Number 133 on

2 April the 2nd of 2015.

3 MS. CANTRELL: No objection.

4 THE COURT: Okay. Plaintiff's Original

5 Petition is admitted as Respondent's Exhbit H.

6 MS. PACHECO: And what those documents

7 establish is the procedural history in this court

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

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

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

11 to constitute the original pleading that was promptly

12 served was filed before any attempt to initiate any

13 jurisdiction, any other court which the supreme court

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

15 reinstitute this Court's jurisdiction.

16 Even if you believe that we couldn't

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

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

19 irrelevant because we reinstituted a lawsuit on March

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

21 And finally we ask the Court to take

22 judicial notice of your order of substituted service.

23 THE COURT: It is so noted.

24 MS. PACHECO: Thank you, Your Honor.

HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER 20

1 REBUTTAL ARGUMENT BY MS. CANTRELL:

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

3 comments in rebuttal.

4 THE COURT: Sure.

5 MS. CANTRELL: The facts of this case are

6 what happened in Greenberg versus Brookshire

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

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

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

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

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

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

13 over.

14 And so I also wanted to point out that in

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

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

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

18 you-all get that?

19 THE COURT: The response --

20 MS. CANTRELL: Their response to our plea.

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

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

23 MS. CANTRELL: Okay. Could you please

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

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

HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER 21

1 couple of misstatements in there about timing and dates

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

3 admitted will speak for themselves.

4 Paragraph 33 says that "Further in his

5 counter and cross-petition filed prior to the Court

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

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

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

9 dates being March 24th for the counter and

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

11 And that error is repeated in Paragraph 36 where it

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

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

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

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

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

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

18 the record on those two things.

19 THE COURT: Okay. Just quite simply: We

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

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

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

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

24 petition. And so

25 MS. CANTRELL: Your Honor, could we look

HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER 22

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

2 numbering, on original petitions that are in evidence?

3 THE COURT: Okay.

4 MS. CANTRELL: It says, "All matters

5 relating to or appertaining to an estate or

6 guardianship -- "

7 THE COURT: Where are you reading from?

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

9 cited in their response.

10 THE COURT: Okay.

11 MS. CANTRELL: "All matters relating or

12 appertaining to an estate or guardianship," which this

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

14 Probate Court Code including proceedings upon trust

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

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

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

18 shall retain the original docket number with an

19 appropriate sub file."

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

21 should have its own separate case number according to

22 the way I read these rules.

23 "Each subsequent matter filed involving

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

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

HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER 23

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

2 filing."

3 So, I do not see under these rules how

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

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

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

7 they've already raised the construction issues in the

8 district court case; so those are already before the

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

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

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

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

13 district court case saying this court has jurisdiction.

14 MS. CANTRELL: I have a copy of that

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

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

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

18 should it have gone through the process of being

19 assigned to another probate court?

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

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

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

23 to the exact same cause number or style of the

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

25 very upset when you start picking new courts which is

HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER 24

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

2 court which is clearly intention of the local rules.

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

4 Government Code Section 25.1034 which this Rule 2.2

5 refers to, and it does talk about the random

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

7 a separate docket for each court. The County Clerk

8 shall assign and docket as random matters and

9 proceedings filed in the statutory probate courts

10 according to the following percentages:

11 "Probate Court Number 1 - 30 percent;

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

13 percent; Probate Court 4 - 20 percent."

14 So, this is the random assignments. You

15 may be familiar with this.

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

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

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

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

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

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

22 another court, it wasn't immediately transferred back

23 under administrative transfer powers.

24 MS. CANTRELL: I have no problem --

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

HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER 25

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

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

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

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

5 going to send it back.

6 MS. CANTRELL: Your Honor, I would submit

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

8 all over.

9 MS. PACHECO: Of course, she does because

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

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

12 year and a half. It is offensive.

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

14 called following the rules.

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

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

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

18 Rules of Professional Procedure. There is nothing

19 appropriate about the actions that have been taken in

20 this case.

21 MS. CANTRELL: There is

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

23 because I'm about to be unprofessional myself.

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

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

HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER 26

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

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

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

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

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

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

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

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

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

10 but --

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

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

13 opinion in Michael's case --

14 MS. PACHECO: Your Honor, I have a

15 proposed order on the dismissal of the plea and the

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

17 THE COURT: Well what were you saying?

18 MS. CANTRELL: The Court says this:

19 "After the trial Court lost plenary

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

21 expired 30 days after the March 16th dismissal under

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

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

24 plea to the jurisdiction. Because the trial Court had

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

HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER 27

1 the plea is void. An appellate Court should declare

2 post-plenary power orders void."

3 And that is my position that any order in

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

5 have read, is void.

6 In this case, now they can file a brand

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

8 starting with the nonsuit and 30 days thereafter when

9 the plenary power expires. That is just according to

10 the rules.

11 You can call it gamesmanship as Ms.

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

13 rules. It is to prevent this exact same thing

14 happening; otherwise, the right to nonsuit would be

15 illusory. You could never nonsuit because someone could

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

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

18 only void but it would be an interlocutory order and

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

20 not a situation where there's substantial ground for

21 disagreement.

22 REBUTTAL ARGUMENT BY MS. PACHECO:

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

24 under this circumstance; and two, again Counsel

25 completely ignores how the law does not approve of forum

HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER 28

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

2 We obtained rulings on summary judgments. We did all

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

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

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

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

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

8 different court; different floor; different court; same

9 courthouse.

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

11 appropriate or relevant to the issues in this case.

12 MS. CANTRELL: The plaintiff has a perfect

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

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

15 appeal over.

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

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

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

19 the Plaintiff, and he has chosen the Harris County

20 Probate Courts, wherever he be assigned, including the

21 judge who is very educated on this process.

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

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

24 dismissing this entire case.

HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER 29

1 COURT'S RULING

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

18 that came back to us.

19 And now the Warren children are wanting to

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

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

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

23 courts especially you guys have both invested a lot of

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

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

HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER 30

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

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

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

4 powers expire 30 days after I sign the order dismissing

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

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

7 And maybe it should have been funneled through the

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

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

10 something procedural like that.

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

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

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

14 MS. CANTRELL: Yes, Your Honor.

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

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

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

18 hearing.

19 Ms. Cantrell has the propensity to contact

20 your staff and email them and elicit comments and then

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

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

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

24 Given what she has contorted some of those statements to

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

HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER 31

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

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

3 attempt to put an email in the record.

4 I recognize -- I'm a believer in

5 cooperative courts, and y'all have always been

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

7 answers and then use those in future proceedings and

8 it's just improper.

9 She has suggested court staff has given

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

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

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

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

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

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

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

17 parties to stop emailing anything substantive to the

18 Court and put in a pleading.

19 THE COURT: Okay.

20 MS. CANTRELL: I thought you did that

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

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

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

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

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

HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER 32

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

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

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

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

5 pro se litigants then quite often we will give advice

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

7 procedural, and it may be even bordering on legal

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

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

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

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

12 This case is totally different, okay. And

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

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

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

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

17 are not permitted to receive it.

18 MS. CANTRELL: Your Honor, I understand

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

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

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

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

23 to realize is you call it procedural issues, but

24 technically, what she should be communicating with the

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

HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER 33

1 her procedural questions answered by this Court either.

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

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

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

5 with it in the proper way.

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

7 intended to address procedural issues on notice and

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

9 sort of contorting those communications into other

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

11 Counsel where, you know, colleagues or anybody

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

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

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

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

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

17 implying this Court has done anything other than be

18 excessively cooperative to both sides. But Ms. Cantrell

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

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

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

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

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

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

25 back and forth that included Judge Comstock. I just

HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER 34

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

2 with unusual parties and unusual counsel and perhaps

3 this is one where other than asking for setting a

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

5 avoid this happening again.

6 THE COURT: Okay.

7 MS. CANTRELL: These emails with the order

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

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

10 this over and over at the last hearing.

11 THE COURT: Well no, no because the Court

12 can discuss procedural issues with lawyers, but when

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

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

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

16 seasoned lawyers. You guys know the procedures.

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

18 over -- about anything other than scheduling hearings.

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

20 we limit our all-communication.

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

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

23 her bring it up again.

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

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

HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER 35

1 beyond the bounds of simply setting hearings then --

2 MS. PACHECO: There's a discussion of

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

4 different direction. All of that is beyond what should

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

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

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

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

9 appreciative that we can approach you on any normal case

10 and ask reasonable questions with Counsel copied. This

11 is just not that case.

12 MS. CANTRELL: But Counsel was copied on

13 those emails and it was initiated --

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

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

16 is forced to respond and your staff is then watching

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

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

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

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

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

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

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

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

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

HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER 36

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

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

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

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

5 out there or questions out there and forcing the other

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

7 except that if someone makes a request that we limit

8 receipts of emails and communication by email and phone

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

10 request and especially because you guys can call up any

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

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

13 MS. CANTRELL: I'm just confused about

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

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

16 discussion of the substance of all emails. I think

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

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

19 needs to stop.

20 And again, she, just like the offering of

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

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

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

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

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

HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER 37

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

2 contacts with this Court to requesting hearings which I

3 think is the conservative and appropriate means to

4 communicate with the Court because I do want a record

5 any time Ms. Cantrell communicates with this Court.

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

7 forward, all communication needs to be with setting

8 hearings only and

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

10 think you made that clear to us last time.

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

12 want to sign this?

13 MS. PACHECO: I apologize. Thank you.

14 THE COURT: Thank you.

15 MS. PACHECO: May I be dismissed?

16 THE COURT: Yes.

17 MS. PACHECO: Thank you.

20 * * * * * 21

HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER 38

1 The State of Texas

2 County of Harris

4 I, Hipolita Lopez, Official Court Reporter in and

5 for the Probate Court Number Four of Harris County,

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

7 foregoing contains a true and correct transcription of

8 all portions of evidence and other proceedings requested

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

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

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

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

13 I further certify that this Reporter's Record

14 truly and correctly reflects the exhibits, if any,

15 admitted by the respective parties.

16 I further certify that the total cost for the

17 preparation of this Reporter's Record is $288.00

18 and was paid by Cantrell & Cantrell

19 WITNESS MY OFFICIAL HAND this the 19th day of

20 May, 2015.

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

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

PROBATE COURT 4 No. 425,576-401

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

PLEA TO THE JURISDICTION

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

Cross-Petition.

SUMMARY OF THE ARGUMENT

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

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

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

1982).

BACKGROUND

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

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

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

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

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

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

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

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

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

EXHIBIT exhibitsticker.com

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

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

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

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

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

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

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

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

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

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

No. 425,577.

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

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

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

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

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

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

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

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

Andy Weiner failed to do so.

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

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

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

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

parties to the nonsuited case.

ARGUMENT & AUTHORITIES

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

the following reasons:

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

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

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

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

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

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

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

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

871].

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

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

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

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

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

TRCP 162.

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

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

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

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

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

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

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

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

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

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

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

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

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

proceeding), also citing Greenberg v. Brookshire].

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

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

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

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

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

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

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

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

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

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

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

entire case under the holding of Greenberg v. Brookshire.

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

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

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

of Daniel’s nonsuit.

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

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

RELIEF REQUESTED

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

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

entire case for lack of jurisdiction.

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

5 CERTIFICATE OF SERVICE

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

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

/s/ Carol Cantrell CAROL A. CANTRELL

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

NO_ 425,577

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

ANSWER TO PETITION FOR TERMINATION OF TRUST

TO THE HONORABLE JUDGE OF SAID COURT:

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

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

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

thereof respectfully shows the following:

I. Overview

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

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

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

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

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

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

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

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

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

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

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

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

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

in their divorce.

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

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

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

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

both need protection.

II. B@ckgro!lnd

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

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

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

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

successor trustee.

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

for their grandson's education,

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

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

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

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

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

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

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

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

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

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

Decree provides:

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

lrusl~. which sh~ll conllnue &$ wrlllen, and lhal each partY wlllclaxa any and all ·necessary slep~ to provide full r.

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

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

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

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

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

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

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

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

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

agreement and the Divorce Decree provide otherwise.

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

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

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

Paragraphs 1 through 10.

A. Ge1zeml Deulttl

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

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

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

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

the State of Texas.

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

manner authorized by the Texas Rules of Civil Procedure.

B. Affinnative Defenses

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

or in part, by the doctrine of res judicata.

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

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

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

or in pillt, by the doctrine of unclean hands:

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

or in part, by the terms of the Trust.

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

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

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

IV. Request for Jury Tl'ial

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

and hereby tenders payment.

v. Request fol' })isclosul'e

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

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

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

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

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

receive.

Respectfully submitted,

CRAIN, CATON & JAMES, A PROF • NA CORPORATION

Attomeys for Andy Weiner

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

CERTIFICATE OF SERVlCE

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

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

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

NO. 425,577

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

FIRST SUPPLEMENT TO ORIGINAL ANSWER

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

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

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

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

shows the following:

I. VERIFIED DENIAL

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

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

II. SUPPLEMENTAL AFFIRMATIVE DEFENSE

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

interest in the David Abraham Weiner 1994 Trust.

III. SUPPLEMENTAL PRAYER

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

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

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

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

he may show himself justly entitled to receive.

2 092865/000002 376 - 1096417v1 Respectfully submitted,

CRAIN, CATON & JAMES, A PROFESSIONAL CORPORATION

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

Attorneys for Andy Weiner

CERTIFICATE OF SERVICE

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

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

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

/s/ Kathleen Tanner Beduze KATHLEEN TANNER BEDUZE

3 092865/000002 376 - 1096417v1 VERIFICATION

STATE OF TEXAS § § COUNTY OF HARRIS §

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

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

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

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

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

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

NOTARY PUBLIC IN OF TEXAS

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

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

AMENDED ORDER ON MOTION TO SEVER

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

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

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

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

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

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

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

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

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

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

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

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

It is further,

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

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

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

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

PRESIDING JUDGE -""' li"

425,576-401

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

ORDER GRANTING PETITIONER'S NONSUIT AND DISMISSAL

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

Signed ~o.>r~ \~ , 2015

JUDGE CHRISTINE BUTTS HARRIS COUNTY PROBATE COURT FOUR

C No. 425,576-401

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

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

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

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

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

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

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

---fr--~ Granted ' Denied

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

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

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

_ _ _ _ _ Granted )< Denied EXHIBIT --'----- exhibitsticker.com

D ij I,

1: I

i

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

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

lx Granted : Denied I

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

).{. Granted Denied {

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

- - - - - Granted Denied

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

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

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

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

' PRESIDING JUDGE

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

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

ANDY WEINER’S RESPONSE TO PLEA TO THE JURISDICTION

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

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

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

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

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

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

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

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

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

Jurisdiction.

II. FACTUAL BACKGROUND

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

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

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

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

Bayle Weiner Drubel shall serve as successor trustee.

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

to provide for Daniel’s education.

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

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

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

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

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

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

mother and his sisters in front of his sons.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

related to the Family Court Proceeding.

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

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

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

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

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

in Cause No. 425576.

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

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

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

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

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

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

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

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

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

this reference.

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

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

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

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

incorporated by this reference.

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

Judgment.

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

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

contained within his Motion for Partial Traditional Summary Judgment.

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

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

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

in David’s Case.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

of action. Exhibit F ¶1.

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

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

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

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

Cause No. 425,576-401.

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

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

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

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

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

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

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

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

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

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

Ms. Cantrell attended that deposition.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

properly and diligently sought to serve Daniel, in compliance with the Texas Rule of Civil

Procedure.

27. On May 4, 2015, Mr. Weiner filed a Plea in Abatement and, subject thereto, Original

Answer in Cause No. 2015-19320.

III. ARGUMENT & AUTHORITY

28. Daniel’s Plea to the Jurisdiction is his last ditch effort to have his case tried in the District

Court, instead of this Court where he originally filed his claims against his father, Mr. Weiner.

29. Daniel’s nonsuit nullifies the controversy by and between Daniel and Mr. Weiner; it does

not affect any pending claims for relief made by Mr. Weiner. In re Bennett, 960 S.W. 35, 38

(Tex. 1997). A party has an absolute right to nonsuit their own claims, but not someone else’s

claims they are trying to avoid. Tex. Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 31, 37 (Tex. 2008)

(emphasis in original).

30. So long as the plaintiff pleads enough facts to affirmatively demonstrate the trial court

6 092865/000001 376 - 1495732v1 has jurisdiction over the suit, a court’s jurisdiction attaches upon filing a lawsuit. TEX. PROP.

CODE § 115.001; TDCJ v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). And, unless the pleadings

demonstrate the absence of jurisdiction, the court will assume it has jurisdiction over the case.

Peek v. Equip. Serv., 779 S.W.2d 802, 804 (Tex. 1989); Beacon Nat’l Ins. v. Montemayor, 86

S.W.3d 260, 266 (Tex. App.—Austin 2002, no pet.). In the event this Court “lost” its

jurisdiction upon Daniel’s nonsuit – which Mr. Weiner vehemently disagrees – this Court gained

jurisdiction upon the filing of Mr. Weiner’s Cross and Counter-Petition.

31. Rule 162 of Texas Rule of Civil Procedure governs dismissal and nonsuits. Rule 162

provides that “[a]ny dismissal pursuant to this rule shall not prejudice the right of an adverse

party to be heard on a pending claim for affirmative relief.” TEX. R. CIV. P. 162. A claim for

affirmative relief is one “on which the claimant could recover compensation or relief even if the

plaintiff abandons his cause of action.” Univ. of Tex. Med. Branch at Galveston v. Est. of

Blackmon ex rel. Shultz, 195 S.W.3d 98, 101 (Tex. 2006); BHP Petroleum Co., Inc. v. Millard,

800 S.W.2d 838, 841 (Tex.1990).

32. Daniel falsely asserts that Mr. Weiner had no affirmative claims for relief pending at the

time of Daniel’s nonsuit. At the time of Daniel’s nonsuit, Mr. Weiner had the following cross-

claims, alleged in his Second Amended Cross-Claims, against Ms. Warren pending: (1)

contribution, (2) breaches of fiduciary duty, (3) removal of trustee, (4) tortious interference with

administration, and (5) attorneys’ fees and costs. See Exhibit F. These are claims for affirmative

relief under Rule 162 of the Texas Rules of Civil Procedure. TEX. R. CIV. P. 162; BHP Pet. Co.

v. Millard, 800 S.W.2d 838, 840-41 (Tex. 1990) (defendant’s request for declaratory judgment if

it seeks resolution of continuing issues); Leon Springs Gas Co. v. Restaurant Equip. Leasing Co.,

961 S.W.2d 574, 578 (Tex. App—San Antonio 1997, no pet.); Ulloa v. Davila, 860 S.W.2d 202,

7 092865/000001 376 - 1495732v1 204 (Tex. App.—San Antonio 1993, no writ) (counterclaim did more than resist plaintiff’s suit).

These are independent claims for affirmative relief, not merely derivative claims. In re Estate of

Kidd, 812 S.W.2d 356, 359 (Tex. App.—Amarillo 1991, writ denied).

33. Further, in his Counter and Cross-Petition, filed prior to this Court signing Daniel’s

request for dismissal, Mr. Weiner alleged the following claims: (1) construction of the Trust

Agreement, (2) breach of fiduciary duty, (3) reimbursement, (4) removal as trustee, (5) tortious

interference with administration, and (6) petition to modify trust and request for appointment of a

corporate trustee. See Exhibit G.

34. Daniel relies upon Greenberg v. Brookshire and Ault v. Mulanex in support of his

position that this lawsuit should be dismissed, despite Mr. Weiner’s valid pending claims.

Greenberg v. Brookshire, 640 S.W.2d 870 (Tex. 1982); Ault v. Mulanex, 724 S.W.2d 824 (Tex.

App—Texarkana 1986, orig. proceeding). However, these cases are readily distinguishable.

Greenberg was a divorce action wherein the lower court conducted a hearing on an amended

pleading after the husband nonsuited his claims. Unlike the facts to the instant case, there were

only two parties to the lawsuit – a husband and a wife – and the wife filed a counterclaim against

her husband and requested a hearing on same after her husband filed a nonsuit. The lower court

conducted a hearing on the counterclaims, which the Texas Supreme Court held was in error, as

a plaintiff has an absolute, unqualified right to a nonsuit. Greenberg, 640 S.W.2d at 872. Ault

v. Mulanax is another divorce proceeding, specifically involving custody and child support issues

and; not relating, whatsoever, to the factual disputes at issue in the instant litigation. Ault v.

Mulanax, 724 S.W.2d at 828. Notwithstanding the factual differences, the Ault cases specifically

related to and involved the imposition of the Texas Family Code. Id. Furthermore, the legal

issues in Ault were jurisdictional – which court had dominant jurisdiction at the time the nonsuit

8 092865/000001 376 - 1495732v1 was filed. Id. at 828. Like in Greenberg, the Texarkana Court of Appeal’s ruling in Ault is not

instructive to this Court, as the factual and legal matters at issue in Ault are grossly different and

irrelevant to the case at hand.

35. Regardless of the gamesmanship of Daniel and his mother, Ms. Warren, and their

persistent litigious acts, Daniel’s nonsuit does not summarily dismiss the affirmative claims

brought by Mr. Weiner against Ms. Warren, which were filed prior to the nonsuit; Daniel cannot

nonsuit Mr. Weiner’s claims against Ms. Warren. Tex. Mut. Ins. Co., 251 S.W.3d at 37.

V. CONCLUSION

36. Mr. Weiner’s Second Amended Cross-Claims were properly on file prior to Daniel’s

Nonsuit. And, subsequent to Daniel’s nonsuit, but prior to the entry of dismissal, Mr. Weiner’s

Cross and Counter-Petition was filed.

37. While Daniel’s nonsuit effectively eliminates the affirmative claims he had against Mr.

Weiner, it does nothing with respect to the claims alleged by Mr. Weiner against Ms. Warren.

This Court has jurisdiction over this case and the remaining claims between Mr. Weiner and Ms.

Warren.

38. Accordingly, it would be improper to dismiss this case, in its entirety, because of the

remaining claims by Mr. Weiner against Ms. Warren.

WHEREFORE, Andy Weiner respectfully requests that this Court, after oral hearing,

deny the Plea to the Jurisdiction filed by Daniel Warren f/k/a Daniel Steven Weiner, and for such

other and further relief, either at law or in equity, to which he may be justly entitled.

9 092865/000001 376 - 1495732v1 Respectfully submitted,

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

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

Carol A. Cantrell Thomas R. Conner Cantrell & Cantrell, PLLC Conner & Lindamood, P.C. 3700 Buffalo Speedway, Suite 520 1221 Lamar, Suite 1010 Houston, Texas 77098 Houston, Texas 77010 Facsimile: (713) 333-0550 Facsimile: (713) 654-8115

by e-file, facsimile and/or certified mail, return receipt requested, on the 12th day of May, 2015.

10 092865/000001 376 - 1495732v1 PROBATE COURT 4 No. 4 2 55 7 6 INRE: § IN THE PROBATE CO~RT § :r v! Iii § No • . '1"! ·\""? >k' uj. iZ V) ;:Q· DANIEL STEPHEN WEINER § --o ·; Ji> ) ?;.~ . r'l m 1996TRUST HARRISCOUNT.j.~AA~ § () ... ,;,· ~ \ ORIGINAL PETITION FOR TERMINATION OF TRUs'I{f.' i'" ·'··" t.. ~-- !' - - m m :l <: - IJo. •• 0 " ~ TO THE HONORABLE JUDGE OF SAID COURT:

1996 TRUST (the "Trust"), Petitioner herein, and files this Original Petition for Termination of

Trust, respectfully showing the Comt as follows:

PARTIES

l. Petitioner is an individual acting as co, trustee of the Trust. The sih1s of administration of

the Trust is maintained in Houston, Han·is County, Texas. Petitioner brings this action in

her capacity as co-h11stee of the Tmst pursuant to Texas Trust Code § 111.004(7). A true

and correct copy of the trust agreement is attached hereto as "Exhibit A" and is

incmporated for all purposes.

2. Andy I. Weiner is an individual acting as co-tmstee of the Tmst. Andy I. Weiner is

joined as a Respondent herein because he has an interest in this Trust under Texas Trust

Code § 111.004(7) and is a necessary party pursuant to Texas Trust Code §

115.0ll(b)(4). Andy I. Weiner cunently resides at 1200 Post Oak Blvd., Apartment 907,

Houston, Texas 77056.

3. Daniel S. Weiner, ("Primary Beneficiary") has an interest in this proceeding pursuant to

Texas Trust Code § 111.004(7) and is joined as Respondent herein because he is

cunently eligible, or potentially eligible to receive distributions of income and principal

TAB G fi·om the Trust. Pursuant to Texas Tmst Code § 115.011(2) Daniel S. Weiner is a

necessary party because he is the p1imary beneficiary named in the Tmst. Daniel S.

Weiner was bom on March II, 1996 and he currently resides at 1226 Mnirfield Place,

Houston, Harris County, Texas 77055. Petitioner requests to appear as next of fi'iend on

behalf of Daniel S. Weiner. Daniel S. Weiner is a minor, and Petitioner is his mother. In

the divorce decree, attached as "Exhibit B," entered into by Katheline F. Wan·en and

Andy I, Weiner in Cause Number 2011-01040 in the Distlict CoUit of the 309'h Judicial

Dishict in Harris County, Texas, Petitioner was awarded the exclusive right to represent

her minor children in legal actions and to make decisions of substantial legal significance

on behalf of her minor children. Texas Tmst Code§ 115.013(c)(3) permits a parent to

represent her child as guardian ad litem or next of fi·iend if there is no conflict of interest

and no guardian of the estate or guardian ad litem has been appointed.

JURISDICTION

4. This Court has jurisdiction to grant the relief requested in this petition pursuant to Texas

Tmst Code§ 115.001(d)(l) and Texas Probate Code§ 4G.

VENUE

5. Venue of this proceeding is proper in tllis Court pursuant to Tex.as Tmst Code §

115.002(b-2) and Texas Probate Code§ 8.

FACTS

6. The Twst is an inter vivos trust created under Internal Revenue Code § 2503( c) by

Katheline F. Wan·en and Andy I. Weiner by agreement dated March 20, 1996 for the

benefit of their son, the Primary Beneficiary.

2 7. At the present time, the only pennissible beneficiary of the Trust is the Primary

Beneficiary. The Trust is authorized under Section A-I to make distributions to the

Primary Beneficiary as follows:

During the tenn of the trust, the trustees may distribute as much or

all of the Trust estate as, in the trustees' discretion, is in the

Primary Beneficiary's best interests.

8. Pursuant to Section A-2 of the Trust, the Plimary Beneficiary may withdraw all or part of

the Tn1st estate within 60 days after becoming age 21, and may thereby terminate the

trust as to the part withdrawn. If the Primaty Beneficiary does not exercise his

withdrawal right, the T!ust continues 1mtil the Primary Beneficiary becomes age 30.

9. Section A-2 of the Tmst provides that in the event the Primary Beneficiary should die

before the Trust tenninates, then all assets remaining in the T1ust shall be held or

distributed by the T1ustee for the benefit of those in favor of whom the Primary

Beneficiary exercises a power of appointment, or otherwise in the following order: (I) to

the Primary Beneficiary's descendants, (2) if none of the descendants are then Jiving, to

the hustors' descendants, (3) if none of the trusters' descendants are then living, to the

trustors' heirs.

I 0. Section C-1 T1ust agreement provides that any distribution made to a beneficiary of the

Trust may be made to a custodian for a minor beneficiary under the Uniform Gifts to

Minors Act.

II. The trust had marketable securities and cash in the approximate value of $113,000 as of

August 31, 2013.

3 12. The initial co-trustees of the Trust were Katherine A. Warren and Andy I. Weiner. Both

of the initial co-hustees of the Trust remain the current co-trustees, and no other co-

trustees have been appointed. In the event that Andy I. Weiner and Katherine F. Warren

cease to act as tmstee, Bayle Weiner Drubel, Andy I. Weiner's sister, is appointed

successor trustee under Section D-l(a) of the Tmst.

13. The co-hustees of the Tn.1st are the parents of the Primary Beneficiary. Although the co-

hustees were manied at the time the Trust was created, they were granted a divorce on

March 29, 2012. From the time that the div01'ce was finalized, the co-trustees have been

unable to agree on proper administration of the Trust.

14. Pursuant to the divorce decree attached as "Exhibit B," the Court ruled that the Trust

should be administered according to its te1ms. Tltis requixes the co-trustees to act jointly,

which has proved detrimental to the best interests of the Primary Beneficiary and

contrary to the purposes ofthe Trust.

15. Texas Trust Code § 112.054(a)(3) provides that on the petition of a trustee, a Comt may

order that the trustee be changed or that the Tmst be terminated if modification of

administrative, non-dispositive terms of the tmst is necessary or appropriate to prevent

waste or avoid impairment ofthe Tmst's administration.

16. Texas Trust Code§ 112.054(a)(2) provides that on the petition of a trustee, a Court may

order that the tmstee be changed or that the Tmst be tenninated if, because of

circumstances not known to or anticipated by the hustors, termination or modification of

the Tmst will further the purposes oft he Trust.

17. Petitioner claims that the inability of the co-llustees to agree on the appropriate

administration of the Trust assets has impaired the Tn1st's administration. The purposes

4 of the Tmst, to provide for the Primary Beneficiary, cannot be fulfilled if the co-tmstees

cannot agree regarding what actions constitute the "best interests" of the Primary

Beneficiary. Additionally, the cunent circumstances, i.e. the divorce of the co-tmstees,

was not known to or anticipated by the tmstors. Tetmination or modification of the Trust

is necessary due to the disharmony between the Tmst's co-trustees which prevents the

co-trustees from administering the Tmst in the best interests of the Primary Beneficiary.

l. Petitioner requests that the Court order that the Tmst be tetminated and that the Trust

estate be distributed to the Unifmm Transfers to Minors Act account created for the

benefit of the DanielS. Weiner, Fidelity Account ending in #6843, over which Katherine

F. Wanen was awarded sole and exclusive control in the divorce decree attached as

"Exhibit B"; that continued administration of the Trust would defeat or substantially

impair the accomplislm1ent of the Tmst; that such circumstances were not known to or

anticipated by the tmstms upon creation of the Tmst; that termination of the Tmst will

further the purposes of the Trust; that the Petitioner be awarded Court costs and expenses

and legal fees fi·om the Trust estate; that the remaining assets of the Tmst, after payment

of Court costs and expenses and legal fees, be distributed to the Fidelity Account ending

in #6843; and that the Court enter such other orders as may be approp1iate to provide for

the delivery of all Tmst assets fi·om Katherine F. Warren and Andy I. Weiner to the

Fidelity Account ending in #6843.

2. Petitioner altematively requests that the Comi order that the co-trustees be changed; that

the Court appoint an independent corporate tmstce; that replacing the co-trustees with an

independent corporate tmstee will ftniher the purposes of the Trust; that modification of

5 the Trust is necessary or appropriate to prevent waste or avoid impairment of the Ttust's

administration; that the Petitioner be awarded Court costs and expenses and legal fees

from the Trust estate; that the remaining assets of the Trust, after payment of Court costs

and expenses and legal fees, be distributed to an independent corporate trustee; and that

the Court enter such other orders as may be appropriate to provide for the delivery of all

Trust assets fi·om Katherine F. Wall'en and Andy I. Weiner to the independent corporate

trustee.

3. After the hearing on this petition, if the Comt tenninates the Trust or appoints a corporate

trustee in place of the current co-trustees, Katherine F. Warren will submit a final

accounting that describes all of the actions she has taken as co-tntstee of the Tmst. In

that event, Petitioner asks the Court to review the final accounting, and to enter an order

approving the accounting and discharging Katherine F. Wanen from any liabilities in

connection with her actions as co-trustee of this Trust, including the termination.

4. Petitioner brings this action for the puqJose of preserving and protecting the interests of

the Trust and its Primary Beneficiary. The relief sought herein is necessary to enable the

Tntst to fulfill its purposes as created by the tmstors. Accordingly, Petitioner is entitled

to recover reasonable attorney's fees and coutt costs fi·om the Trust pursuant to Texas

Trust Code§ 114.064. If any of the other parties to this proceeding retain counsel to

represent their interests in this cause, including counsel appointed by this Comt, the

Court should detetmine whether all or any portion of the attorney's fees and court costs

incuJTed by these parties should be paid by the Trust.

6 PRAYER

WHEREFORE PREMISES CONSIDERED, Petitioner prays that the Com! grant the

requested relief. Petitioner further prays for such other and further relief to which Petitioner is

justly entitled.

Cantrell & Cowan, PLLC

By: !JJ~ Carol A. Cantrell, Attomey for Petitioner Texas Bar No.: 24043592 Meredith N. Mciver Texas Bar No.: 24078974 3700 Buffalo Speedway, Suite 520 Houston, TX 77098 Phone: 713-333-0555 Fax: 713-333-0550

7 CERTIFICATE OF SERVICE

I certif'y that on September 30, 2013, I served a tme and correct copy of the foregoing instrument by cetiified mail, return receipt requested to the following:

Andy I. Weiner 1200 Post Oak Blvd., Apartment 907, Houston, Texas 77056

Carol llA£~~11. ~antrell No. _ _ _ _ _ __

INRE: § IN THE PROBATE COURT § § NO. _____________ DANffiL STEPHEN WEINER § 1996TRUST § HARRIS COUNTY, TEXAS

FINAL JUDGMENT

On the ___ day of _ _ _ _ _ _ _ _ _, 2013, came on to be heard the Original

Petition for Termination of Trust in the above-entitled and numbered cause by Katherine F.

Warren, co-trustee of the DANIEL STEPHEN WEINER 1996 TRUST. Petitioner appeared

through her duly authorized representative and attomey of record and mmounced ready for trial.

Respondent Andy I. Weiner appeared by and through his duly authorized representative and

attomey of record and allllounced ready for trial. No jury having been demanded by any patiy,

all issues of fact and law were submitted to the Court for decision.

Having reviewed the pleadings and other papers on file in this cause; and having

considered the evidence presented at trial and the arguments of counsel, the Court finds as

follows:

1. This Court has jurisdiction and venue of this action.

2. All necessary patiies to this action are properly before the Court and have been duly

served with citation in the mallller required by law.

3. The DANIEL STEPHEN WEINER 1996 TRUST (hereinafter referred to as the "Trust")

is an inter vivos trust created by Katherine F. Warren and Andy I. Weiner by agreement

dated March 20, 1996 for the benefit of their son, Daniel S. Weiner (hereinafter referred

to as the "Primary Beneficiary").

4. The current co-trustees of the Trust are Katherine F. Warren and Andy I. Weiner. 5. Texas Trust Code§ 112.054(a)(3) provides that on the petition of a trustee or beneficiary,

a Comt may order that the tmstee be changed or that the Trust be te1minated if

modification of administrative, non-dispositive terms of the trust is necessary or

appropriate to prevent waste or avoid impairment of the Tmst's administration.

6. Texas Tmst Code§ 112.054(a)(2) provides that on the petition of a trustee or beneficiary,

a Comt may order that the tmstee be changed or that the Trust be tem1inated if,· because

of circumstances not known to or anticipated by the trustors, termination or modification

of the Tmst will fmther the purposes of the Tmst.

7. Petitioner has requested termination of the Trust contingent on the Court's finding that:

(a) the inability of the co-hustees to agree on the appropriate administration of the Trust

assets has impaired the Trust's administration; and (b) due to the divorce of the co-

trustees, a circumstance not known to or anticipated by the trustors when they created the

Trust, termination will further the purposes of the Trust, which is to provide for the best

interests of the Primary Beneficiary.

8. Petitioners have alternatively requested that the co-trustees be replaced by an independent

cmporate trustee, if available, contingent on the Court's finding that: (a) the inability of

the co-trustees to agree on the appropriate administration of the Trust assets has impaired

the Trust's administration; and (b) due to the divorce of the co-trustees, a circumstance

not known to or anticipated by the trustors when they created the Tmst, modification of

the Tmst will further the p\ll'poses of the Trust, which is to provide for the best interests

of the Primary Beneficiary.

2 9. The co-trustees have tendered an accounting of their actions as co-trustee of the Tn1st

(the "Final Accounting"). The Final Accounting reflects that the co-trustees have

administered the Tmst in accordance with the requirements of Texas law.

10. The Final Accounting should be approved in all respects, and the co-trustees should be

released and discharged from any and all liabilities arising out of or in any way related to

the administration of the Trust or the Trust termination.

11. The Tmst should be tenninated and the remaining Trust estate, after payment of all Comt

costs and expenses and legal fees should be distributed to the Unifonn Transfers to

Minors Act account created for the benefit of the Daniel S. Weiner, Fidelity Acco

ending in #6843.

12. Katherine F. Warren brought this action for the purpose of preserving and protecting the

interests of the Trust and its Primary Beneficiary. The relief sought in this action was

necessary to enable the Trust to accomplish the purposes of the Trust as established by

the trustors. Accordingly, Katherine F. Warren is entitled to recover her reasonable and

necessary attorney's fees and litigation expenses fi·om the Trust pursuant to Texas Trust

Code § 114.064.

It is therefore, ORDERED, ADJUDGED, and DECREED that the Trust is hereby

terminated; that the termination shall be effective immediately upon the entry of this Final

Judgment by the Court; that the co-trustees are directed to deliver the remaining Trust estate,

after payment of all Court costs and expenses and legal fees to the Fidelity Account ending in

#6843. The provisions of this Final Judgment shall constitute sufficient legal authority to all

persons owing any money to the Trust, having custody of any property of the Trust, or acting as

3 transfer agent of any property of the Tn1st, for payment or transfer of such money, property, or

right without liability to Daniel S. Weiner, the Primary Beneficiary, and his legal successors in

interest.

It is further ORDERED, ADWDGED, and DECREED that the Final Accounting

submitted by the co-trustees is hereby approved in all respects, and that the co-trustees are

hereby released and discharged from any and all liabilities arising out of or in any way related to

the administration of the Tmst, including its termination.

It is further ORDERED, ADmDGED, and DECREED that Katherine F. Warren is

entitled to recover her reasonable attomey's fees and comt costs of$_ _ _ _ _ _ from the

Trust pursuant to Texas Trust Code § ll4.064, and that these fees shall be paid prior to the

delivery of any propCJties to the Primary Beneficiary.

It is fi.uther ORDERED, ADJUDGED, and DECREED that all :filing fees and Court costs

in this cause are hereby taxed against the Trust, for which execution shall issue if not timely

paid.

SIGNED this _ _ _ day of _ _ _ _ _ _ _ _ , 2013.

Judge Presiding

4 APPROVED AS TO FORM AND SUBSTANCE:

Carol A. Cantrell, Attomey for Petitioner Texas Bar No.: 24043592 Meredith N. Mciver Texas Bar No.: 24078974 3700 Buffalo Speedway, Suite 520 Houston, TX 77098 Phone: 713-333-0555 Fax: 713-333-0550

5 I I Exhibit A

DANIEL STEVEN WEINER 1996 TRUST

By this· trust agreement, Andy I. Weiner and Katherine Friedman weiner, husband and wife, both of Harris county, Texas, as 11 trustors," establish the Daniel steven weiner 1996 Trust for the

benefit of their son, Daniel Steven Weiner ("Daniel"), born Harch 11, 1996, Trusters grant, assign and deliver to Andy r. Weiner and Katherin.e Friedman Weiner, both 9f Harris county, Texas, as "trustees," the property described in Attachment A. Attachment A, which is captioned "Initial Contributions to the Daniel steven weiner 1996 Trust," is incorporated by reference as a part of this trust agreement. This trust agreement and the trusts. established by it are irrevocable. No person shall have the right to revoke or amend this trust agreement or any of its provisions. However, property acceptable to the trustee may be added to any trust from time to time in the future by trusters or by any other person (including additions pursuant to the provisions of the last will of any person). · All references to "trustee" shall refer to the person or persons then acting as such. A. PRIMARY TRUST A-1. Distributions. The income of the trust may be accumulated and retained, in whole or in part, or the trustee may distribute to Daniel, from time to time, so much or all of the trust estate as, in the trustee's discretion, is in Daniel's best interests. A-2, Termination. Daniel may withdraw any part or all of the trust . estate within 60 days after he becomes. age .21, and may thereby terminate the trust as to the part withdrawn. Exercise of this w~·thdrawal right shall be by one or more written instruments delivered to the trustee within the 60-day period. If or to the extent that Daniel does not exercise this withdrawal right, the trust shall continue until Daniel becomes age 30 or dies before that age, at which time the trust estate shall be distributed: (a) To Daniel. (b) If Daniel is not then living, to such one or more persons, corporations or organizations (including Daniel's estate), as Daniel appoints by a will which specifically refers to this power of appointment. If or to the extent that Daniel does not effectively exercise this power cf appointroent, the trust estate shall be distributed: (1) To Daniel's descendants. (2) If none of Daniel's descendants is then riving, to trustors' descendants. ( 3) If none of trusters' descendants is then living, to trusters' heirs. A-3. Pavment of Taxes. If Daniel's will contains no contrary directions, the trustee shall pay from the trust estate the entire increment in taxes payable by reason of Daniel's death (including any interest or penalties thereon) to the extent (if any) that the total of such taxes is greater than would have been imposed if no portion of the trust estate were taken into account in determining such taxes. B. CONTINGENT TRUSTS B-1. Trusts Established. Any portion of a trust estate upon the trusts termination (other than a portion withdrawn by Daniel pursuant to Paragraph A-2) which would be distributable to a beneficiary who is under age 30 or to a beneficiary who is under a legal disability instead shall be distributed to the trustee of a Contingent Trust (unless otherwise directed by the valid exercise of a power of appointment). Each beneficiary's portion so distributed shall be held and administered as the initial trust estate of a separate trust for the beneficiary. However 1 if a Contingent Trust is already in existence for that beneficiary, any additional portion to be distributed to the trustee of a contingent Trust for the beneficiary shall be added to the trust estate of the existing contingent Trust. B-2. Distributions. The income of each Contingent Trust may be accumulated and retained, in whole or in part, or the trustee may distribute to the beneficiary for whom the trust was established, from time to time, so much or all of the trust estate as, in the trustee's discretion, is in the beneficiary's best interests. B-3, Termination. Each Contingent Trust shall terminate when the beneficiary for whom the trust was established has become age 30 and is under no legal disability or upon the beneficiary's earlier death. Upon termination, the trust estate shall be distributed: (a) To the beneficiary. (b) If the beneficiary is not then living, to such one or more persons, corporations or organizations as the beneficiary appoints by a will which specifically refers to this power of appointment. If none of the beneficiary's descendants is than living, this power may not be exercised in favor of the beneficiary, the beneficiary's estate, the beneficiary's creditors or the creditors of the beneficiary's estate. If or to the extant that the beneficiary does not effectively exercise this power of appointment, the trust estate shall be distributed: (1) To the beneficiary's descendants,

-2- (2) If none of the beneficiary's descendants is then living, to the descendants of the beneficiary's nearest ancestor who was one of trusters' descendants and who has descendants then living, (3) If none of these persons is then living, to trusters, descendants. ( 4) If none of trusters 1 descendants is then living, to trustors' heirs. C, DISTRIBUTIONS c-1, Distributions to or for Beneficiaries. During the term of a trust, any distribution to be made to a beneficiary from the trust may be made (i) to the beneficiary, (ii) if the beneficiary is under a legal disability or if the trustee determines that the beneficiary is unable to properly manage his affairs, to a person furnishing support, maintenance or education for the beneficiary or with whom the beneficiary is residing, for expenditure on the beneficiary's behalf, or (iii) to a custodian for a minor beneficiary, as selected by the trustee, under the uniform Gifts to Minors Act of any state. Alternatively, the trustee may otherwise apply all or a part of the distribution for the beneficiary's benefit. However, no such distribution shall be made to a trustor, to any spouse of a trustor, or in any manner that discharges a legal obligation (including an obligation of support) of a trustor or any spouse of a trustor. Any distribution under this paragraph shall be a full discharge of the trustee with respect thereto. c-2. Best Interests of Beneficiary, In making distributions in the "best interests" of a beneficiary, the trustee may consider the age of the beneficiary, the costs of the beneficiary's support, maintenance, education and comfort without regard to any other resources available to the beneficiary for these purposes, the effect of any distribution upon the income and transfer tax liability of the beneficiary or of the trust, and any other factors deemed relevant by the trustee. D. OFFICE OF TRUSTEE D-1. Successor Trustee, Co-Trustee, The following provisions shall apply to each separate trust established under this trust agreement: (a) Successor ~'rustee. Should Andy I. l~einer or Katherine Friedman Weiner cease to act as trustee, for any reason, the one remaining shall continue to act as trustee. Should both Andy I. Weiner and Katherine Friedman Weiner cease to act as trustees, for any reason, trusters appoint Bayle Weiner Drubel as successor trustee.

-3- (b) Appointment of successor Trustee by Trustee, At any time after qualifying as trustee, any trustee may appoint a successor trustee to act in his place, either immediately or in the future upon any stated contingency, and may thereby supplement the provisions of subparagraph (a). (c) Appointment of successor Trustee by Beneficiaries. If at any time there is no trustee acting and none has been appointed, a majority of the beneficiaries (acting through the beneficiary's natural or legal guardian or legal representative, in the case of a beneficiary under a legal disability) who might then be entitled to receive a distribution from the trust estate shall appoint a successor trustee. (d) Appointment of Co-Trustee. The trustee (acting unanimously if more than one) may appoint one or more co-trustees, (e) !fuo May Be Appointed. A successor trustee or co-trustee may be any individual, bank or trust company and may be domiciled anywhere. (f) Procedure for Appointment. Appointment shall be made by written instrument filed with the trust records. Any such appointment may be changed or revoked prior to the date it becomes effective. Any such appointment may be limited in any manner deemed advisable by the person making the appointment, including, for example, restricting the power over distributions as necessary to avoid the imposition of any tax upon the trust, the appointee or the appointee's estate. D-2, Resignation of Trustee, A trustee may resign from a trust without the necessity of any court proceeding upon meeting these conditions: (a) Notice. At least 30 days' written notice (if not waived) shall be given to each beneficiary who might then be entitled to receive a distribution from the trust estate. If a beneficiary is under a legal disability, notice shall be given to (or waived by) the beneficiary's natural or legal guardian, (b) Accounting. I f and to tbe extent required by the successor trustee, an accounting for the administration of the trust shall be given to the successor trustee, The successor trustee shall be fully protected in relying upon such accounting, D-3, Rights and Liabilities, (a) Bond Not Required, No bond or other security shall be required of any trustee. (b) Liabilities, This agreement shall always be construed in

-4- favor of the validity of any act by or omission of any trustee. A trustee shall not be liable for any act or omission except in the case of gross negligence, bad faith or fraud. Specifically, in assessing the propriety of any investment of a trust estate, the overall performance of the entire trust estate shall be taken into account. (c) Compensation. Each trustee shall be entitled to receive reasonable compensation for services actually rendered to a trust. E. ADMINISTRATION E-1. General Powers of Trustee. To carry out the trust purposes but subject to any limitations stated elsewhere herein, the trustee of each trust shall have the following powers, which may be exercised free from court supervision, and which shall exist until all of the trust estate has been distributed: (a) Trust Estate. The trustee may invest and reinvest all or any part of. the trust estate in property of any description and may retain as a part of the trust estate any property acquired at any time and in any manner. specifically, and without regard to the provisions of any applicable state law, the trustee may retain, or invest and reinvest in, property unproductive of income, shares of open or closed end investment trusts or companies, wasting assets, and any other property, regardless of location and without regard to any requirement of diversification as to kind or amount. (b) Business Interests. The trustee may continue operation of any business entity, in any business form, with all or any part of the trust estate, and may reorganize or liquidate any such entity at any time. (c) Tl'ansfers. Loans. The trustee may lease 1 sell, transfer, or encumber in any manner (including with purchase money mortgages) all or any part of the trust estate, and may loan or borrow money in any manner (including by joint and several obligations) ~lith or 1~ithout security. Subject to the provisions of Paragraph E-J(a), the trustee may purchase assets from the estate of a trustor and may loan funds to the estate of a trustor at such rate of interest and with such security as the trustee determines to be in the best interests of the current beneficiaries of the trust. (d) Dealings Nith Related Parties, The trustee may deal with any person or entity regardless of any relationship or identity of any trustee to or with that person or entity and may hold or invest all or any part of the trust estate in common or undivided interests with that person or entity. (e) Agents. Employees. The trustee may employ and compensate agents and other employees ~nd may delegate to them any and all discretions and p01~ers, -5- (f) Partitions, Distributions. The trustee may partition all or any part of any interest, may pay and receive such moneys or properties as may be necessary to equalize differences, and in so doing (i) may make any distribution of all or any part of the trust estate in any manner (including composing shares differently) and (ii) may evaluate any property, which valuation shall be binding on all beneficiaries. . (g) Claims, Controversies. The trustee may maintain and defend any claim or controversy by or against the trust without the joinder or consent of any beneficiary. (h) Additional Powers. In addition, the trustee shall have all rights, privileges and powers now or hereafter granted to trustees in Texas, including those granted under the Texas Trust Code, Any subsequent legislation or regulation expanding or limiting the rights, privileges and powers granted a trustee shall apply to all trusts hereunder unless the trustee elects not to have such legislation or regulation apply to a particular trust by a written instrument filed with the trust records. However, the provisions made for the various beneficiaries under this trust agreement are exclusive. Any statute that purports to enlarge the class of beneficiaries to whom distributions may be made or the purposes for which distributions may be made shall not apply to any trust. All trust powers may be exercised upon such terms as the trustee deems advisable and may affect trust properties for any length of time regardless of the duration of the trust. Generally, and subject only to the terms of this trust agreement, the trustee shall hold, manage, control, use, invest, reinvest, and dispose of the trust estate to the same extent as if the trustee were the fee simple owner thereof, E-2. Principal and Incomg Determinations. The receipts, disbursements and reserves of each trust may be a~located, on a cash or accrual basis, between principal and 1ncome in the trustee 1 s discretion without regard to the provisions of any statute. ~·o the extent the trustee does not exercise this discretionary power, the provisions of the Texas Trust ·Code shall control, E-3, Restrictions on the Exercise of certain Powers. (a) Dealings with Trust Estate, No power granted the trustee shall be construed to enable any person to purchase, exchange, or otherwise deal with or dispose of any trust estate for less than an adequate consideration in money or money 1 s ~lol:-th or to authorize loans to any person \dthout adequate interest, No part of any trust estate may be (i) loaned to a trustor or to any spouse of a trustor or (ii) applied to the payment of premiums on policies of insurance on the life of a trustor or on the life of any spouse of a trustor,

-6- (b) Distributions to or for Trustee. Any p01·1er to make discretionary distributions to or for the benefit of a person who is serving as trustee of a trust (including distributions to the person 1 s spouse and distributions in discharge of any legal obligation of the person) shall be exercisable solely by the trustee or trustees other than that person. If no other trustee is then serving, such power shall not be exercisable, E-4. Release and Delegations of Powers. Any power granted to a trustee may be released, in whole or in part, temporarily or permanently. Except as provided in Paragraph E-3 1 any such pot7er may be delegated, in whole or in part, temporarily or permanently, to any other trustee then acting. A release or delegation shall be by written instrument filed with the records of each trust to which the release or delegation applies, F. DEFINITIONS AND GENERAL PROVISIONS F-1. Trust Estate. "Trust estate" means all assets, however and whenever acquired (including income and accumulated income), which may belong to a trust at any given time. F-2. Descendants. "Descendants" means the legitimate children of the person or persons designated and the legitimate lineal descendants of such children, and includes any person adopted before becoming age 18 and the adopted person's descendants. A posthumous child shall be considered as living at the death of his parent. Whenever a distribution is to be made to the descendants of any person, the property to be distributed shall be divided into as many equal shares as there are living children of the person and deceased children of the person who left descendants who are then living, Each living child shall take one share and the share of each deceased child shall be divided among his then living descendants in the same manner. "Trusters' descendants" includes only those persons descended from both trusters. F-3. Heirs. Any distribution to be made to the "heirs" of a person shall b<;> made to the individuals who would have inherited the person's personal property if the person had died intestate at the time the distribution is to be made, domiciled in Texas and not married, under the laws of Texas in force on the effective date of this trust agreement, with the shares of taking determined by those laws. However, both trusters and any spouse of a trustor shall be deemed to have died prior to the time that any such distribution is to be made. A distribution to "trusters' heirs" shall be made to the heirs of Andy I. Weiner. F-4. Internal Revenue code. "Internal, Revenue code" means the Internal Revenue Code of 1986, as amended, or corresponding provisions of any subsequent federal tax laws.

-7- F-5. other Terms, The use of any gender includes the other genders, and the use of either the singular or the plural includes the other. F-6. Spendthrift Provision. No beneficiary shall have the power to anticipate, encumber, or transfer his interest in any trust estate in any manner. No part of any trust estate shall be liable for or charged with any debts, contracts, liabilities or torts of a beneficiary or subject to seizure or other process by any creditor of a beneficiary. Nothing in this paragraph shall be construed to limit the otherwise valid exercise of a power of appointment or right of withdrawal given by this trust agreement. F-7. Texas Law Applies. The situs of the trusts established under this trust agreement is Texas. Wherever possible, the laws of Texas shall apply to the construction, administration and validity of each trust. F-8, Maximum Term of Trusts. No trust shall continue for a period longer than 21 years after the death of the last to die of trusters and all of trusters' descendants who are living on the effective date of this trust agreement. Any trust still in force at the end of such period shall terminate, and the trust estate shall be distributed to the beneficiary for whom the trust was established. F-9. Powers of Appointment Exercisable by Beneficiaries. In exercising a power of appointment given to a beneficiary by this trust agreement, the beneficiary may appoint the property subject to the power outright to the appointee, in trust, or to a custodian for the appointee under the Uniform Gifts to Minors Act of any state. If the beneficiary appoints to a custodian, he may select the custodian. If the beneficiary appoints in trust, he may select the trustee or trustees, may establish such administrative terms for the trust as he deems appropriate, and may impose lawful spendthrift restrictions. He may give the trustee discretionary powers over the income and principal, and may create a trust that has several permissible distributees. He may create life interests or other limited interests in some appointees with future interests in favor of other appointees, may appoint different types of interests among the appointees, and may create new powers of appointment in a trustee or trustees or in any appointee. He may impose lawful conditions on an appointment and,, in general, may appoint to or among the appointees in any lawful manner. In determining whether, in what manner and to what extent a testamentary power of appointment has been exercised by a beneficiary, the trustee may act in reliance upon a court order admitting an instrument to probate as the beneficiary's last will or an order finding that the beneficiary died intestate, Unless ~ri thin six months after the beneficiary 1 s death the trustee has actual notice of the existence of proceedings to probate a will of the beneficiary, the trustee shall assume that the beneficiary died intestate. The foregoing provisions are intended to expedite the prompt and efficient administration of the trust and to protect the trustee from any action taken or distribution made in accordance with these prov1sions. Nothing in this paragraph shall limit or qualify any power of appointment given by this trust agreement or any right which an appointee or taker in default of appointment may have against any person receiving a distribution from the trustee irrespective of the place of probate or of the time of discovery of a will exercising the power or any other action taken in the beneficiary's estate. G. ACCEPTANCE BY TRUSTEE By signing this trust agreement, the trustee (i) accepts these trusts and all of the rights, powers and duties attached to the office of trustee as provided herein, (ii) agrees to serve as trustee of the Daniel Steven Weiner 1996 Trust and of any Contingent Trusts which may be established under this trust agreement, (iii) acknowledges receipt of the property described in Attachment A, and (iv) agrees to hold and administer each trust estate in accordance with the terms of this trust agreement. This trust agreement is executed effective as of the 20th day of March, 1996.

Andy I. Weiner, Trustor and Trustee

Katherine Friedman Weiner, Trustor and Trustee

-9- ATTACID1ENT A: INITIAL CONTRIBUTIONS TO THE DANIEL STEVEN WEINER l996 TRUST

$1.00

Andy I, Weiner, Trustor and Trustee

Kather~ne Fr~edman We1ner, Trustor and Trustee 3669:palnso\01 57136

-10- Exhibit B

NO. 2011·01 040

IN THE MATTER OF § IN THE DISTRICT COURT THE MARRIAGE OF § y5 jl.:s' §

1~§ E gosrH JUDICIAL DISTRicT s:f~ KATHERINE F. WEINER AND ANDY I. WEINER F 01c s oanlel lot Clerk · rt:C AND IN THE INTEREST OF MAl2 9 2012 DAVID A. WEINER, DANIELS. § WEINER AND MICHAEL H. Tim•: --,ll§

AGREED FINAL DECREE OF DIVORCE

On February 17, 2012, the Court heard the parties' agreement for the

terms of their Agreed Final Decree of Divorce as set out in the parties' Mediated

Settlement Agreement. Andy I. Weiner and his attorney, Eileen M. Gaffney

appearing for Joan F. Jenkins appeared In person and proved up the agreement.

After hearing the parties' agreement, the court set this case for entry.

Appearances

Petitioner, Katherine F. Weiner, appeared at entry through her attorney of

record, Randy B. Wilhite and announced ready.

Respondent, Andy I. Weiner, appeared in person and through attorney of

record, Joan F. Jenkins, and announced ready.

Record

The making of a record of testimony was waived by the parties with the

Weiner- Agreed Final Decree of Divorce Rl!OOROER'S MEMORANDUM Page 1 T\lls lnslrumont Is of poor quality

~~ a\ lho \lme of Imaging consent of the Court.

Jurisdiction .and Domicile

The Court finds that the pleadings of Petitioner are in due form and contain

all the allegations, information, and prerequisites required by law. The Court,

after receiving evidence, finds that It has jurisdiction of this case and of all the

parties and that at least sixty days have elapsed since the date the suit was filed.

The Court further finds that, at the time this suit was filed, Petitioner had

been a domiciliary of Texas for the preceding six-month period and a resident of

the county In which this suit was flied for the preceding ninety-day period. All

persons entitled to citation were properly cited.

Jury

A jury was waived, and questions of fact and of law were submitted to the

Court.

Agreement of Parties

The Court finds that the parties have entered into an Agreement Incident to

Divorce, in a document separate from this Final Decree of Divorce. The Court :;;: 't approves the agreement and incorporates it by reference as part of this decree as N

~ if it were recited herein verbatim and orders the parties to do all things necessary to ~ [: effectuate the agreement. A copy of the agreement is not filed with the records of .,., ii this Court. lll s 50 0 Weiner- Agreed Final Decree of Divorce 1l "" 'ij u ;

ihe agreements In this Final Decree of Divorce were reached In mediation

with Harry L. Tindall. This Final Decree of Divorce is stipulated to represent a

merger of a mediated settlement agreement between the parties. To the extent

there exist any differences between the mediated settlement agreement and this

Final Decree of Divorce, this Final Decree of Divorce shall control In all instances.

Divorce

IT IS ORDERED AND DECREED that Katherine F. Weiner, Petitioner, and

Andy I. Weiner, Respondent, are divorced and that the marriage between them Is

dissolved on the ground of insupportabillty.

Children of the Marriage

The Court finds that Petitioner and Respondent are the parents of the

following children:

Name: David A. Weiner Sex: Male Birth date: June 14, 1994 Home state: Texas Social Security number: xxx-xx-x861 Driver's license number and issuing state: xxxxx273, Texas

Name: DanielS. Weiner Sex: Male Birth date: March 11, 1996 Home state: Texas Social Security number: xxx-xx-x039 Driver's license number and issuing state: xxxxx996Texas

Weiner- Agreed Final Decree of Divorce I

Name: Michael H. Weiner Sex: Male Birth date: November 1, 1999 Home state: Texas Social Security number: xxx-xx-x735 Driver's license number and Issuing state: N/A

The Court finds no other children of the marriage are expected.

Parenting Plan

The Court finds that the provisions In this decree relating to the rights and

duties of the parties with relation to the children, possession of and access to the

children, child support, and optimizing the development of a close and continuing

relationship between each party and the children constitute the parties' agreed

parenting plan.

Conservatorship

The Court, having considered the circumstances of the parents and of the

children, finds that the following orders are in the best interest of the children.

IT IS ORDERED that Katherine F. Weiner and Andy I. Weiner are appointed

Joint Managing Conservators of the following children: David A. Weiner, Daniel ... '.,. 1i s. Weiner and Michael H. Weiner. J!" IT IS ORDERED that, at all times, Katherine F. Weiner, as a parent joint ' "' .."'~ managing conservator, shall have the following rights:

~ 1. the right to receive information from any other conservator of the ~ children concerning the health, education, and welfare of the children:

i 8 Weiner· Agreed Final Decree of Divorce Page4 1l "' ·e u" { I

2. the right to confer with the other parent to the extent possible befo~e making a decision concerning the health, education, and welfare of the children;

3. the right of access to medical, dental, psychological, and educational records of the children;

4. the right to consult with a physician, dentist, or psychologist of the children;

5. the right to consult with school officials concerning the children's welfare and educational status, Including school activities;

6. the right to attend school activities;

7. the right to be designated on the children's records as a person to be notified In case of an emergency;

8. the right to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the children; and

9. the right to manage the estates of the children to the extent the estates have been created by the parent or the parent's family.

IT IS ORDERED that, at all times, Andy I. Weiner, as a parent joint

managing conservator, shall have the following rights:

1. the right to receive information from any other conservator of the children concerning the health, education, and welfare of the children;

2. the right to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the children;

3. the right of access to medical, dental, psychological, and educational records of the children;

li 4. the right to consult with a physician, dentist, or psychologist of the 'E children; z llE g (:) Weiner· Agreed Final Decree of Divorce Page5 vY ~ 1l "' ·e 0" i •

5. the right to consult with school officials concerning the children's welfare and educational status, including school activities;

7. the right to be designated on the children's records as a person to be notified In case of an emergency;

B. the right to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the children; and

9. the right to manage the estates of the children to the extent the estates have been created by the parent or the parent's family.

IT IS ORDERED that, at all times, Katherine F. Weiner and Andy I. Weiner,

as parent joint managing conservators, shall each have the following dulles:

1. the duty to inform the other conservator of the children In a timely manner of significant information concerning the health, education, and welfare of the children; and

2. the duty to inform the other conservator of the children if the conservator resides with for at least thirty days, marries, or intends to marry a person who the conservator knows Is registered as a sex offender under chapter 62 of the Code of Criminal Procedure or Is currently charged with an offense for which on conviction the person would be required to register under that chapter. IT IS ORDERED that this Information shall be tendered In the form of a notice made as soon as practicable, but not later than the fortieth day after the date the conservator of the children begins to reside with the person or on the tenth day after the date the marriage occurs, as appropriate. IT IS ORDERED that the notice must include a description of the offense that is the basis of the person's requirement to register as a sex offender or of the offense with which the person is charged. WARNING: A CONSERVATOR COMMITS AN OFFENSE PUNISHABLE AS A CLASS C MISDEMEANOR IF THE CONSERVATOR FAILS TO PROVIDE THIS NOTICE.

IT IS ORDERED that, during her periods of possession, Katherine F.

Weiner- Agreed Final Decree of Divorce Weiner, as parent joint managing conservator, shall have the following rights and

duties:

1. the duty of care, control, protection, and reasonable discipline of the children; 2. the duty to support the children, including providing the children with clothing, food, shelter, and medical and dental care not involving an invasive procedure;

3. the right to consent for the children to medical and dental care not involving an invasive procedure; and

4. the right to direct the moral and religious training of the children.

IT IS ORDERED that, during his periods of possession, Andy I. Weiner, as

parent joint managing conservator, shall have the following rights and duties:

1. the duty of care, control, protection, and reasonable discipline of the children;

2. the duty to support the children, Including providing the children with clothing, food, shelter, and medical and dental care not involving an invasive procedure;

3, the right to consent for the children to medical and dental care not Involving an Invasive procedure; and

4. the right to direct the moral and religious training of the children.

IT IS ORDERED that Katherine F. Weiner, as a parent joint managing

conservator, shall have the following rights and duty:

1. the exclusive right to establish the primary residence and legal domicile of the children in Harris County, Texas or a county that is contiguous to Harris County, Texas, subject to the provisions hereinafter.

2. the exclusive right to consent to medical, dental, and surgical

Weiner· Agreed Final Decree of Divorce Page? treatment involving Invasive procedures;

3. the exclusive right to consent to psychiatric and psychological treatment of the children;

4. the exclusive right to receive and give receipt for periodic payments for the support of the children and to hold or disburse these funds for the benefit of the children;

5. the exclusive right to represent the children In legal action and to make other decisions of substantial legal significance concerning the children;

6. the exclusive right to consent to marriage and to enlistment in the armed forces of the United States;

7. the right, subject to the agreement of the other parent conservator, to make decisions concerning the children's education; B. except as provided by section 264.0111 of the Texas Family Code, the independent right to the services and earnings of the children;

9. except when a guardian of the children's estates or a guardian or attorney ad litem has been appointed for the children, the independent right to act as an agent of the children In relation to the children's estates if the children's action is required by a state, the United States, or a foreign government; and

10. the exclusive duty to manage the estates of the children to the extent the estates have been created by community property or the joint property of the parent.

IT IS ORDERED that Andy I. Weiner, as a parent joint managing

conservator, shall have the right, subject to the agreement of the other parent

conservator, to make decisions concerning the children's education, and In this

regard, the Court finds that Andy I. Weiner has agreed for each child to remain at

the Kinkaid School through each child's graduation from such School, and that

there are other more specific provisions herein further delineating the obligation of

Weiner- Agreed Final Decree of Divorce . ·I

Andy I. Weiner to pay for the Kinkaid School for the children.

The Court finds that, in accordance with section 153.001 of the Texas

Family Code, it is the public policy of Texas to assure that children will have

frequent and continuing contact with parents who have shown the ability to act in

the best interest of the child, to provide a safe, stable, and nonviolent environment

for the child, and to encourage parents to share in the rights and duties of raising

their child after the parents have separated or dissolved their marriage. IT IS

ORDERED that, so long as the principal residence of Andy I Weiner Is in either

Harris County, Texas or a county that is contiguous to Harris County, Texas, the

primary residence of the children shall be in Harris County, Texas or a county that

is contiguous to Harris County, Texas, and the parties shall not remove the

children from such designated area for the purpose of changing the primary

residence of the children until modified by further order of the court of continuing

jurisdiction or by written agreement signed by the parties and filed with the court.

IT IS ORDERED that the following custodial accounts now held by the

parties for the parties' children are placed under the sole and exclusive control of ,. ~

'B Katherine F. Weiner: "' 1. Fidelity UTMA Acct Ending in #4270; and

2. Fidelity UTMA Acct Ending in #6843.

Unless these documents have been previously executed, Andy I. Weiner Is

Weiner - Agreed Final Decree of Divorce Page 9 •' •'

ORDERED to appear in the law offices of Randall B. Wilhite at 4265 San Felipe

Street, Suite 1400, Houston, Texas 77027, at 2:00p.m. on March 30, 2012, and to

execute, have acknowledged, and deliver to Katherine F. Weiner all documents

necessary to effectuate Katherine F. Weiner's sole and exclusive control of the

accounts.

IT IS ORDERED that the following children's trusts are held in irrevocable

trusts, which shall continue as written, and that each party will take any and all

necessary steps to provide full co-trustee ownership and control of each such

account including the placing of such accounts in a deposit and withdrawal

agreement requiring both co-trustees to disburse funds; also known as an "and"

account:

1. Fideli1y Trust Acct Ending in #8634 (David);

2. Fidelity Trust Acct Ending in #3958 (Daniel); and

3. Fidelity Trust Acct Ending In #1942 (Michael).

Possession and Access

1. Modified Possession Order

The Court finds that the parties have entered into a Mediated Settlement Agreement providing for a non-expanded, non-standard possession order as more specifically herein provided.

IT IS ORDERED that each conservator shall comply with all terms and conditions of this Modified Possession Order. IT IS ORDERED that this Modified Possession Order is effective immediately and applies to all periods of possession occurring on and after the date the Court signs this

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Modified Possession Order. IT IS, THEREFORE, ORDERED:

(a) Definitions

1. In this Modified Possession Order "school" means the primary or secondary school in which the child Is enrolled or, if the child is not enrolled In a primary or secondary school, the public school district in which the child primarily resides.

2. In this Modified Possession Order "child" Includes each child, whether one or more, who is a subject of this suit while that cllild Is under the age of eighteen years and not otherwise emancipated.

(b) Mutual Agreement or Specified Terms for Possession

IT IS ORDERED that the conservators shall have possession of the child at times mutually agreed to in advance by the parties, and, in the absence of mutual agreement, it is ORDERED that the conservators shall have possession of the child under the specified terms set out in this Modified Possession Order.

© Except as otherwise expressly provided in this Modified Possession Order, Andy I. Weiner shall have the right to possession of the child as follows:

1. Weekends -

On weekends, beginning at 6:00p.m., on the first, third, and fifth Friday of each month and ending at 6:00 p.m. on the following Sunday, provided that upon 14 days' advance written notice of an out-of-town trip, Andy I. Weiner may pick up at 4 p.m. one time every 60 days.

2. Thursdays - On Thursday of each week during the regular school term, beginning at 4:00 p.m. and ending at 8:00p.m.

3. Spring Vacation in Even-Numbered Years - In even-numbered years, beginning at 5:00 p.m. o'n the day the child is dismissed from school for the school's spring vacation and ending at 5:00p.m. on the day before school resumes after that vacation.

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4. Extended Summer Possession by Andy I. Weiner-

With Written Notice by April 1 - On or before April 1•t of each year, Andy I. Weiner shall designate one period of 14 consecutive days (which may be exercised In 2 one week periods of possession, separated by no less than 14 days), beginning no earlier than the day after the child's school is dismissed for the summer vacation and ending no later than 7 days before school resumes for the next school year, during which he shall have his summer periods of possession with the children. These periods of possession shall begin and end at 6:00p.m. on each applicable day.

Notwithstanding the Thursday periods of possession during the regular school term and the weekend periods of possession ORD.ERED for Andy I. Weiner, It Is expressly ORDERED that Katherine F. Weiner shall have a superior right of possession of the child as follows:

1. Spring Vacation in Odd-Numbered Years - In odd-numbered years, beginning at 5:00 p.m. on the day the child Is dismissed from school for the school's spring vacation and ending at 6:00 p.m. on the day before school resumes after that vacation.

2. Summer Weekend Possession by Katherine F. Weiner- On or before April 15th of each year, Katherine F. Weiner shall designate 14 consecutive days, or at her election, two 7 day periods beginning no earlier than the day after the child's school Is dismissed for the summer vacation and ending no later than 7 days before school resumes for the next school year, during which she will have her summer perlod(s) of possession with the children, provided the dates do not conflict with Father's Day weekend or the summer periods designated by Andy I. Weiner. These periods of possession shall begin and end at6:00 p.m. on each applicable day.

(d) Holidays

Notwithstanding the weekend and Thursday periods of possession of Andy I. Weiner, Katherine F. Weiner and Andy I. Weiner shall have the right to possession of the child as follows:

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1. Christmas Holidays In Even-Numbered Years - In even-numbered years, Andy I. Weiner shall have the right to possession of the child beginning at 6:00 p.m. on the day the child is dismissed from school for the Christmas school vacation and ending at noon on December 28, and Katherine F. Weiner shall have the right to possession of the child beginning at noon on December 28 and ending at 6:00 p.m. on the day before school resumes after that Christmas school vacation. ·

2. Christmas Holidays in Odd-Numbered Years - In odd-numbered years, Katherine F. Weiner shal.l have the right to possession of the child beginning at 6:00 p.m. on the day the child is dismissed from school for the Christmas school vacation and ending at noon on December 28, and Andy I. Weiner shall have the right to possession of the child beginning at noon on December 28 and ending at 6:00 p.m. on the day before school resumes after that Christmas school vacation.

3. Thanksgiving In Odd-Numbered Years In odd-numbered years, Andy I. Weiner shall have the right to possession of the child beginning at 6:00 p.m. on the day the child is dismissed from school for the Thanksgiving holiday and ending at 6:00p.m. on the Sunday following Thanksgiving.

4. Thanksgiving In Even-Numbered Years In even-numbered years, Katherine F. Weiner shall have the right to possession of the child beginning at 6:00 p.m. on the day the child Is dismissed from school for the Thanksgiving hoiiday and ending at 6:00p.m. on the Sunday following Thanksgiving.

5. Father's Day • Andy I. Weiner shall have the right to possession of the child each year, beginning at 6:00 p.m. on the Friday preceding Father's Day and ending at 6:00 p.m. on Father's Day, provided that if Andy I. Weiner is not otherwise entitled under this Modified Possession Order to present possession of the child, he shall pick up the child from Katherine F. Weiner's residence and return the child to that same place. ,. •

possession of the child each year, beginning at 6:00 p.m. on the Friday preceding Mother's Day and ending at 6:00 p.m. on Mother's Day, provided that if Katherine F. Weiner Is not otherwise entitled under this Modified Possession Order to present possession of the child, she shall pick up the child from Andy I. Weiner's residence and return the child to that same place.

(e) Undeslgnated Periods of Possession

Katherine F. Weiner shall have the right of possession of the child at all other times not specifically designated In this Modified Possession Order for Andy I. Weiner.

(f) General Terms and Conditions

Except as otherwise expressly provided In this Modified Possession Order, the terms and conditions of possession of the child are as follows:

1. Surrender of Child by Katherine F. Weiner- Katherine F. Weiner Is ORDERED to surrender the child to Andy I. Weiner at the beginning of each period of Andy I. Weiner's possession at the residence of Katherine F. Weiner.

2. Return of Child by Andy I. Weiner - Andy I. Weiner is ORDERED to return the child to the residence of Katherine F. Weiner at the end of each period of possession.

3. Surrender of Child by Andy I. Weiner - Andy I. Weiner is ORDERED to surrender the child to Katherine F. Weiner, if the child is In Andy I. Weiner's possession or subject to Andy I. Weiner's control, at the beginning of each period of Katherine F. Weiner's exclusive periods of possession, at the place designated in this Modified Possession Order. 4. Return of Child by Katherine F. Weiner- Katherine F. Weiner is ORDERED to return the child to Andy I. Weiner, If Andy I. Weiner is entitled to possession of the child, at the end of each of Katherine F. Weiner's exclusive periods of possession, at the place designated in this Modified Possession Order.

Weiner- Agreed Final Decree of Divorce ' ' '

5. Notwithstanding any other prov1s1on herein to the contrary, any child with a driver's license shall be permitted to drive himself to and from each period of possession and during each period of possession; however, any child without a driver's license (which at this lime includes Daniel Weiner and Michael Weiner) Is ORDERED to ride only with Andy I. Weiner.

6. Personal Effects - Each conservator Is ORDERED to return with the child the personal effects that the child brought at the beginning of the period of possession.

7. Designation of Competent Adult- Each conservator may designate any competent adult to pick up and return the child, as applicable. IT. IS ORDERED that a conservator or a designated competent adult be present when the child is picked up or returned.

8. Inability to Exercise Possession - Each conservator is ORDERED to give notice to the person in possession of the child on each occasion that the conservator will be unable to exercise that conservator's right of possession for any specified period.

9. Written Notice- Written notice shall be made to the other parent via e-mail correspondence to the other parent's e-mail address, including all notices from one parent to the other of any changes in a party's e-mail address. Each party is ORDERED to provide any change in the e-mail address designated by each such party as the one to be used for notification by the other party within 7 days of a change thereof.

This concludes the Modified Possession Order.

2. Provisions for Jewish Religious Holidays

In addition to the holiday periods of possession set forth In the

Modified Possession Order, Andy I. Weiner and Katherine F. Weiner shall

share the Jewish holidays as set forth below:

a. Rosh Hashanah - Even-Numbered Years. In all

Weiner- Agreed Final Decree of Divorce r

even-numbered years Andy I. Weiner shall have possession of the children

for a period beginning at 5:00 p.m. on the night before the first day of Rosh

Hashanah and ending at 9:00 p.m. on the same day; Katherine F. Weiner

shall have possession of the children from 10:00 a.m. until 8:00 p.m. on the

first day of Rosh Hashanah.

b. Rosh Hashanah- Odd-Numbered Years. In all odd-numbered

years Katherine F. Weiner shall have possession of the children for a period

beginning at 5:00 p.m. on the night before the first day of Rosh Hashanah

and ending at 9:00 p.m. on the same day; Andy I. Weiner shall have

possession of the children from 10:00 a.m. until 8;00 p.m. on the first day of

Rosh Hashanah.

c. Yom Kippur - Odd-Numbered Years - In all odd-numbered

years, Katherine F. Weiner shall have possession of the children for a period

beginning at 5:00 p.m. on the night before the first day of Yom Kippur and

ending at 9;00 p.m. on the same day; Andy I. Weiner shall have possession

of the children from 10:00 a.m. until8:00 p.m. on the first day of Yom Kippur.

d. Yom Kippur - Even-Numbered Years - In all even-numbered

years, Andy I. Weiner shall have possession of the children for a period

beginning at 5:00 p.m. on the night before the first day of Yom Kippur and

ending at 9:00 p.m. on the same day; Katherine F. Weiner shall have

Weiner- Agreed Final Decree of Divorce Page 16 possession of the children from 10:00 a.m. until 8:00p.m. on the first day of

Yom Kippur.

e. Passover - Even-Numbered Years - In all even-numbered

years, Andy I. Weiner shall have possession of the children for a period

beginning at 5:00 p.m. on the night before the first full day of Passover and

ending at 9:00 p.m. on the same day.

f. Passover- Odd-Numbered Years- In all odd-numbered years,

Katherine F. Weiner shall have possession of the children for a period

beginning at 5:00 p.m. on the night before the first full day of Passover and

3. Duration

The periods of possession ordered above apply to each child the

subject of this suit while that child Is under the age of eighteen years and not

otherwise emancipated.

4. Noninterference with Possession

IT IS ORDERED that neither conservator shall take possession .of the

children during the other conservator's period of possession unless there is

a prior written agreement signed by both conservators or In case of an

emergency.

5. Termination of Orders

Weiner- Agreed Final Decree of Divorce Page 17 The provisions of this decree relating to conservatorship, possession,

or access terminate on the remarriage of Katherine F. Weiner to Andy I.

Weiner unless a nonparent or agency has been appointed conservator of

the children under chapter 153 of the Texas Family Code.

Child Support

IT IS ORDERED that Andy I. Weiner is obligated to pay and shall pay to

Katherine F. Weiner child support of two thousand two hundred fifty dollars · RPrll ($2,250) per month, with the first payment being due and payable on MMeh 1,

2012, and a like payment being due and payable on the 1st day of each month

thereafter until the first month following the date of the earliest occurrence of one of

the events specified below:

1.' any child reaches the age of eighteen years or graduates from high

school, whichever occurs later, subject to the provisions for support beyond the

age of eighteen years set out below;

2. any child marries;

3. any child dies;

4. the parent-child relationship Is terminated based on genetic testing

l that excludes the obligor as the child's genetic father;

5. the child enlists in the armed forces of the United States and begins

~ active service as defined by section 101 of title 10 of the United States Code; or .D

~ ii ! Weiner- Agreed Final Decree of Divorce Page 18 • J

6. '1nY child's disabilities are otherwise removed for general purposes.

Thereafter, Andy I. Weiner is ORDERED to pay to Katherine F. Weiner child

support of one thousand eight hundred seventy-five dollars ($1,875) per month,

due and payable on the 1st day of the first month immediately following the date of

the earliest occurrence of one of the events specified above for another child and a

like sum of one thousand eight hundred seventy-five dollars ($1 ,875) due and

payable on the 1st day of each month thereafter until the next occurrence of one of

the events specified above for another child.

Thereafter, Andy I. Weiner Is ORDERED to pay to Katherine F. Weiner child

support of one thousand five hundred dollars ($1 ,500) per month, due and payable

on the 1st day of the first month Immediately following the date of the earliest

occurrence of one of the events specified above for another child and a like sum of

one thousand five hundred dollars ($1 ,500) due and payable on the 1st day of

each month thereafter until the next occurrence of one of the events specified

above for another child.

If the child is eighteen years of age and has not graduated from high school, " ~ IT IS ORDERED that Andy I. Weiner's obligation to pay child support to Katherine ~

l F. Weiner shall not terminate but shall continue for as long as the child Is enrolled-

1. under chapter 25 of the Texas Education Code In an accredited

ii secondary school in a program leading toward a high school diploma or under l~ s ~ 'g "'u'E Weiner- Agreed Final Decree of Divorce Page 19 ;. section 130.008 of the Education Code In courses for joint high school and junior

college credit and is complying with the minimum attendance requirements of

subchapter C of chapter 25 of the Education Code or

2. on a full-time basis in a private secondary school in a program leading

toward a high school diploma and Is complying with the minimum attendance

requirements Imposed by that school.

Withholding from Earnings

IT IS ORDERED that any employer of Andy I. Weiner shall be ordered to

withhold from earnings for child support from the disposable earnings of Andy I.

Weiner for the support of David A. Weiner, Daniel S. Weiner and Michael H.

Weiner.

IT IS FURTHER ORDERED that all amounts withheld from the disposable

earnings of Andy I. Weiner by the employer and paid in accordance with the order

to that employer shall constitute a credit against the child support obligation.

Payment of the full amount of child support ordered paid by this decree through the

means of withholding from earnings shall discharge the child support obligation.

If the amount withheld from earnings and credited against the child support

obligation Is less than 1oo percent of the amount ordered to be paid by this decree,

the balance due remains an obligation of Andy I. Weiner, and It Is hereby

ORDERED that Andy I. Weiner pay the balance due directly to the state

Weiner- Agreed Final Decree of Divorce Page 20 disbursement unit specified below.

On this date the Court authorized the issuance of an Order/Notice to

Withhold Income for Child Support.

Payment

IT IS ORDERED that all payments shall be made through the state

disbursement unit at Texas Child Support Disbursement Unit, P.O. Box 659791,

San Antonio, Texas 78265·9791, and thereafter promptly remitted to Katherine F.

Weiner for the support of the children. IT IS ORDERED that each party shall pay,

when due, all fees charged to that party by the state disbursement unit and any

other agency statutorily authorized to charge a fee.

Change of Employment

IT IS FURTHER ORDERED that Andy I. Weiner shall notify this Court and

Katherine F. Weiner by U.S. certified mail, return receipt requested, of any change

of address and of any termination of employment. This notice shall be given no

later than seven days after the change of address or the termination of

employment. This notice or a subsequent notice shall also provide the current

address of Andy I. Weiner and the name and address of his current employer,

whenever that information becomes available.

Clerk's Duties

IT IS ORDERED that, on the request of a prosecuting attorney, the title IV·D

Weiner· Agreed Final Decree of Divorce Page 21 agency, the friend of the Court, a domestic relations office, Katherine F. Weiner,

Andy I. Weiner, or an attorney representing Katherine F. Weiner or Andy I. Weiner,

the clerk of this Court shall cause a certified copy of the Order/Notice to Withhold

Income for Child Support to be delivered to any employer.

Suspension of Withholding from Earnings

The Court finds that good cause exists that no order to withhold from

earnings for child support should be delivered to any employer of Andy I. Weiner

as long as no delinquency or other violation of this child support order occurs and

as long as the Office of the Attorney General Child Support Division is not

providing services to Katherine F. Weiner. For the purpose of this provision, a

delinquency has occurred if Andy I. Weiner has been In arrears for an amount due

for more than thirty days or the amount of the arrearages equals or is greater than

the amount due for a one-month period. If a delinquency or other violation occurs

or If the Office of the Attorney General Child Support Division begins providing

services to Katherine F. Weiner, the clerk shall deliver the order to withhold

earnings as provided above.

ACCORDINGLY, IT IS ORDERED that, as long as no delinquency or other

violation of this child support order occurs and as long as the Office of the Attorney

General Child Support Division is not providing services to Katherine F. Weiner, all

payments shall be made through the state disbursement unit and thereafter

Weiner- Agreed Final Decree of Divorce Page 22 promptly remitted to Katherine F. Weiner for the support of the children. If a

delinquency or other violation occurs or If the Office of the Attorney General Child

Support Division begins providing services to Katherine F. Weiner, all payments

shall be made in accordance with the order to withhold earnings as provided

above.

Kinkaid School Tuition

IT IS ORDERED that Andy I. Weiner shall pay, as child support, through

graduation from high school, each child's tuition, required fees, required books,

lunches at school and other fees associated with the children's attendance at the

Kinkaid School, as billed directly by the school to Andy I. Weiner.

Health Care

1. IT IS ORDERED that Katherine F. Weiner and Andy I. Weiner shall

each provide medical support for each child as set out In this order as additional

child support for as long as the Court may order Katherine F. Weiner and Andy I.

Weiner to provide support for the child under sections 154.001 and 154.002 of the

Texas Family Code. Beginning on the day Katherine F. Weiner and Andy I. ~ '<> Weiner's actual or potential obligation to support a child under sections 154.001 ~1 ~

l and 154.002 of the Family Code terminates, IT IS ORDERED that Katherine F. ' ~ ~ Weiner and Andy I. Weiner are discharged from the obligations set forth in this 00 ~ on li ,£> medical support order with respect to that child, except for any failure by a parent ~ ~ ~ 8 Weiner- Agreed Final Decree of Divorce Page23 1l ""·e u ~ ••

to fully comply with those obligations before that date.

2. Definitions -

"Health Insurance" means insurance coverage that provides basic

health-care services, Including usual physician services, office visits,

hospitalization, and laboratory, X-ray, and emergency services, that may be

provided through a health maintenance organization or other private or public

organization, other than medical assistance under chapter 32 of the Texas Human

Resources Code.

"Reasonable cost" means the total cost of health insurance coverage for all

children for which Andy I. Weiner is responsible under a medical support order that

does not exceed 9 percent of Andy I. Weiner 's annual resources, as described by

section 154.062(b) of the Texas Family Code.

"Reasonable and necessary health-care expenses not paid by Insurance

and incurred by or on behalf of a child" include, without limitation, any copayments

for office visits or prescription drugs, the yearly deductible, If any, and medical,

surgical, prescription drug, mental health-care services, dental, eye care,

ophthalmological, and orthodontic charges. These reasonable and necessary

health-care expenses do not Include expenses for travel to and from the

health-care provider or for nonprescription medication.

"Furnish" means:

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a. to hand deliver the document by a person eighteen years of age

or older either to the recipient or to a person who is eighteen

years of age or older and permanently resides with the

recipient;

b. to deliver the document to the recipient by certified mail, return

receipt requested, to the recipient's last known mailing or

residence address; or

c. to deliver the document to the recipient at the recipient's last

known mailing or residence address using any person or entity

whose principal business is that of a courier or deliverer of

papers or documents either within or outside the United States.

3. Findings on Health Insurance Availability- Having considered the

cost, accessibility, and quality of health Insurance coverage available to the

parties, the Court finds:

Health insurance Is available or is in effect for the children through Andy I.

Weiner's employment or membership in a union, trade association, or other

organization at a reasonable cost.

IT IS FURTHER FOUND that the following orders regarding health-care

coverage are in the best interest of the children.

4. Provision of Health-Care Coverage -

Weiner- Agreed Final Decree of Divorce Page 25 \ '

As additional child support, through four (4) months past high school

graduation for each child and for so long as child support is payable for a child,

Andy I. Weiner Is ORDERED to provide health Insurance for each such child with a

deductible of no more than $1 ,000.00 per year, per child, and if it is higher, as child

support, Andy I. Weiner Is ORDERED to pay 100% of all deductible amounts to a

point where such deductible amount reaches that level. For example, if the

deductible for the children is $7,500, Andy I. Weiner shall pay 100% of the fist

$6,500 in uninsured health care expenses of the children.

Beginning on the first day of the first month following the rendition of the

divorce, and pursuant to section 154. 183© of the Texas Family Code, IT IS

ORDERED that the reasonable and necessary uninsured medical expenses of the

children be paid as follows:

a. Andy I. Weiner shall be responsible for payment of 70% of each

child's deductible;

b. after the deductible has been met, Katherine F. Weiner shall pay for

30% and Andy I. Weiner shall pay for 70% of all uninsured health care expenses

for each child's health care not covered by the children's health Insurance policy.

c. Notwllhstanding the foregoing, any uninsured health care expenses

not applied toward the deductible shall be paid 30% by Katherine F. Weiner and

70% by Andy I. Weiner.

Weiner· Agreed Final Decree of Divorce Page26 ~ '.

d. Unless approved in advance by both parents, any party Incurring out

of network expenses, except in the case Qi a medical emergency, shall pay 100%

of such expense.

Andy I. Weiner is ORDERED to continue to maintain health insurance for

each child who is the subject of this suit that covers basic health-care services,

including usual physician services, office visits, hospitalization, and laboratory,

X-ray, and emergency services.

Andy I. Weiner is ORDERED to maintain such health insurance in full force

and effect on each child who is the subject of this suit as long as child support is

payable for that child. Andy I. Weiner is ORDERED to convert any group

insurance to individual coverage or obtain other health Insurance for each child

within fifteen days of termination of his employment or other disqualification from

the group insurance. Andy I. Weiner is ORDERED to exercise any conversion

options or acquisition of new health insurance in such a manner that the resulting

insurance equals or exceeds that in effect immediately before the change.

Andy I. Weiner Is ORDERED to furnish Katharine F. Weiner a true and

correct copy of the health insurance policy or certification and a schedule of

benefits within 10 days of the signing of this order. Andy I. Weiner is ORDERED

to furnish Katherine F. Weiner the insurance cards and any other forms necessary

for use of the insurance within 10 days of the signing of this order. Andy I. Weiner

Weiner- Agreed Final Decree of Divorce Page 27 •

is ORDERED to provide, within three days of receipt by him, to Katherine F.

Weiner any insurance checks, other payments, or explanations of benefits relating

to any medical expenses for the children that Katherine F. Weiner paid or Incurred.

Pursuant to section 1504.051 of the Texas Insurance Code, IT IS

ORDERED that if Andy I. Weiner is eligible for dependent health coverage but fails

to apply to obtain coverage for the children, the insurer shall enroll the children on

application of Katherine F. Weiner or others as authorized by law.

The party who incurs a health·care expense on behalf of a child is

ORDERED to submit to the other party ail forms, receipts, bills, statements, and

explanations of benefits reflecting the uninsured portion of the health·care

expenses within thirty days after he or she receives them. The non incurring party

is ORDERED to pay his or her percentage of the uninsured portion of the

health·care expenses either by paying the health·care provider directly or by

reimbursing the Incurring party for any advance payment exceeding the incurring

party's percentage of the uninsured portion of the health·care expenses within

thirty days after the nonlncurrlng party receives the forms, receipts, bills,

statements, and explanations of benefits.

These provisions apply to all unreimbursed health·care expenses of any

child who Is the subject of this suit that are Incurred while child support Is payable

for that child.

Weiner. Agreed Final Decree of Divorce Page28 ·''

5. Secondary Coverage- IT IS ORDERED that if a party provides

secondary health insurance coverage for the children, both parties shall cooperate

fully with regard to the handling and filing of claims with the Insurance carrier

providing the coverage in order to maximize the benefits available to the children

and to ensure that the party who pays for health-care expenses for the children is

reimbursed for the payment from both carriers to the fullest extent possible.

6. Compliance with Insurance Company Requirements - Each party is

ORDERED to conform to all requirements imposed by the terms and conditions of

the policy of health Insurance covering the children in order to assure maximum

reimbursement or direct payment by the insurance company of the Incurred

health-care expense, Including but not limited to requirements for advance notice

to any carrier, second opinions, and the like. Each party Is ORDERED to attempt

to use "preferred providers," or services within the health maintenance

organization, if applicable; however, this provision shall not apply if emergency

care is required. Disallowance of the bill by a health Insurer shall not excuse the

obligation of either party to make payment; however, if a bill is disallowed or the

benefit reduced because of the failure of a party to follow insurance procedures or

requirements, IT IS ORDERED that the party failing to follow the insurance

procedures or requirements shall be wholly responsible for the increased portion

Weiner- Agreed Final Decree of Divorce Page29 /<• I

of that bill.

IT IS FURTHER ORDERED that no surgical procedure, other than In an

emergency or one covered by insurance, shall be performed on the child unless

the parent consenting to surgery has first consulted with at least two medical

doctors, both of whom state an opinion that the surgery Is medically necessary. IT.

IS FURTHER ORDERED that a parent who falls to obtain the required medical

opinions before consent to surgery on the child shall be wholly responsible for all

medical and hospital expenses Incurred In connection therewith and not covered

by insurance.

7. Claims- Except as provided in this paragraph, the party who is not

carrying the health Insurance policy covering the children Is ORDERED to furnish

to the party carrying the policy, within thirty days of receiving them, any and all

forms, receipts, bills, and statements reflecting the health-care expenses the party

not carrying the policy Incurs on behalf of the children. In accordance with section

1204.251 and 1504.055(a) of the Texas Insurance Code, IT IS ORDERED that the

party who is not carrying the health insurance policy covering the children, at that

party's option , may file any claims for health-care expenses directly with the

insurance carrier with and from whom coverage is provided for the benefit of the

children and receive payments directly from the insurance company. Further, for

the sole purpose of section 1204.251 of the Texas Insurance Code, Katherine F.

Weiner- Agreed Final Decree of Divorce Page 30 1', ... '

Weiner is designated the managing conservator or possessory conservator of the

children.

The party who is carrying the health insurance policy covering the children Is

ORDERED to submit all forms required by the insurance company for payment or

reimbursement of health-care expenses incurred by either party on behalf of a

child to the insurance carrier within fifteen days of that party's receiving any form,

receipt, bill, or statement reflecting the expenses.

B. Constructive Trust for Payments Received- IT IS ORDERED that any

insurance payments received by a party from the health insurance carrier as

·reimbursement for health-care expenses Incurred by or on behalf of a child shall

belong to the party who paid those expenses. IT IS FURTHER ORDERED that

the party receiving the insurance payments is designated a constructive trustee to

receive any insurance checks or payments for health-care expenses paid by the

other party, and the party carrying the policy shall endorse and forward the checks

or payments, along with any explanation of benefits received, to the other party

within three days of receiving them.

9. WARNING- A PARENT ORDERED TO PROVIDE HEALTH

INSURANCE OR TO PAY THE OTHER PARENT ADDITIONAL CHILD

SUPPORT FOR THE COST OF HEALTH INSURANCE WHO FAILS TO DO SO

IS LIABLE FOR NECESSARY MEDICAL EXPENSES OF THE CHILDREN,

Weiner- Agreed Final Decree of Divorce Page 31 WITHOUT REGARD TO WHETHER THE EXPENSES WOULD HAVE BEEN

PAID IF HEALTH INSURANCE HAD BEEN PROVIDED, AND FOR THE COST

OF HEALTH INSURANCE PREMIUMS OR CONTRIBUTIONS, IF ANY, PAID ON

BEHALF OF THE CHILDREN.

Miscellaneous Child Support Provisions

Support as Obligation of Estate

IT IS ORDERED that the provisions for child support In this decree shall be

an obligation of the estate of Andy I. Weiner and shall not terminate on the death of

Andy I. Weiner. Payments received for the benefit of the children, including

payments from the Social Security Administration, Department of Veterans Affairs

or other governmental agency or life Insurance proceeds, annuity payments, trust

distributions, or retirement survivor benefits, shall be a credit against this

obligation. Any remaining balance of the child support is an obligation of Andy I.

Weiner's estate.

Termination of Orders on Remarriage of Parties but Not on Death of Obligee

The provisions of this decree relating to current child support terminate on " ..... :; the remarriage of Katherine F. Weiner to Andy I. Weiner unless a nonparent or M

l.,.,' agency has been appointed conservator of the children under chapter 153 of the "'~ Texas Family Code. An obligation to pay child support under this decree does not "',,., ~

ii terminate on the death of Katherine F. Weiner but continues as an obligation to 'S z il § 0

8 Weiner- Agreed Final Decree of Divorce Page 32 ] "'8'€ I I ,,J..

David A. Weiner, Daniel S. Weiner and Michael H. Weiner.

Information Regarding Parties

The information required for each party by section 105.006(a) of the Texas

Family Code is as follows:

Name: Katherine F. Weiner Social Security number: xxx-xx-x324 Driver's license number: xxxxx616 Issuing state: Texas Current residence address: 8719 Stablecrest, Houston, TX 77024 Mailing address: 8719 Stablecrest, Houston, TX 77024 Home telephone number: 832-725-4340 Name of employer: N/A

Weiner- Agreed Final Decree of Divorce Page 33 Address of employment: N/A Work telephone number: N/A

Name: Andy I. Weiner Social Security number: xxx-xx-x888 Driver's license number xxxxx486 Issuing state: Texas Current residence address: 1200 Post Oak Blvd., Apt. 907, Houston, TX 77056 Mailing address: 1200 Post Oak Blvd., Apt. 907, Houston, TX 77056 Home telephone number: 832 816 4666 Name of employer: Weiner Development Address of employment: 520 North Post Oak Blvd., Houston, Texas Work telephone number: (713) 623-0188

EACH PERSON WHO IS A PARTY TO THIS ORDER IS ORDERED TO NOTIFY

EACH OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY OF

ANY CHANGE IN THE PARTY'S CURRENT RESIDENCE ADDRESS, MAILING

ADDRESS, HOME TELEPHONE NUMBER, NAME OF EMPLOYER, ADDRESS

OF EMPLOYMENT, DRIVER'S LICENSE NUMBER, AND WORK TELEPHONE

NUMBER. THE PARTY IS ORDERED TO GIVE NOTICE OF AN INTENDED

CHANGE IN ANY OF THE REQUIRED INFORMATION TO EACH OTHER

PARTY, THE COURT, AND THE STATE CASE REGISTRY ON OR BEFORE

THE 60TH DAY BEFORE THE INTENDED CHANGE. IF THE PARTY DOES

NOT KNOW OR COULD NOT HAVE KNOWN OF THE CHANGE IN SUFFICIENT

TIME TO PROVIDE 60-DAY NOTICE, THE PARTY IS ORDERED TO GIVE

NOTICE OF THE CHANGE ON OR BEFORE THE FIFTH DAY AFTER THE

Weiner- Agreed Final Decree of Divorce Page34 I DATE THAT THE PARTY KNOWS OF THE CHANGE.

THE DUTY TO FURNISH THIS INFORMATION TO EACH OTHER PARTY, THE

COURT, AND THE STATE CASE REGISTRY CONTINUES AS LONG AS ANY

PERSON, BY VIRTUE OF THIS ORDER, IS UNDER AN OBLIGATION TO PAY

CHILD SUPPORT OR ENTITLED TO POSSESSION OF OR ACCESS TO A

CHILD.

FAILURE BY A PARTY TO OBEY THE ORDER OF rHIS COURT TO PROVIDE

EACH OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY WITH

THE CHANGE IN THE REQUIRED INFORMATION MAY RESULT IN FURTHER

LITIGATION TO ENFORCE THE ORDER, INCLUDING CONTEMPT OF COURT.

A FINDING OF CONTEMPT MAY BE PUNISHED BY CONFINEMENT IN JAIL

FOR UP TO SIX MONTHS, A FINE OF UP TO $500 FOR EACH VIOLATION,

AND A MONEY JUDGMENT FOR PAYMENT OF ATTORNEY'S FEES AND

COURT COSTS.

Notice shall be given to the other party by delivering a copy of the notice to the

party by e-mail correspondence to the party's e-mail address. Notice shall be given

to the Court by delivering a copy of the notice either in person to the clerk of this

Court or by registered or certified mail addressed to the clerk at 1115 Congress,

Houston, Texas 77002. Notice shall be given to the state case registry by mailing a

copy of the notice to State Case Registry, Contract Services Section, MC046S,

Weiner- Agreed Final Decree of Divorce Page 35 '

P.O. Box 12017, Austin, Texas 78711-2017.

NOTICE TO ANY PEACE OFFICER OF THE STATE OF TEXAS: YOU MAY

USE REASONABLE EFFORTS TO ENFORCE THE TERMS OP CHILD

CUSTODY SPECIFIED IN THIS ORDER. A PEACE OFFICER WHO RELIES

ON THE TERMS OF A COURT ORDER AND THE OFFICER'S AGENCY ARE

ENTITLED TO THE APPLICABLE IMMUNITY AGAINST ANY CLAIM, CIVIL OR

OTHERWISE, REGARDING THE OFFICER'S GOOD FAITH ACTS

PERFORMED IN THE SCOPE OF THE OFFICER'S DUTIES IN ENFORCING

THE TERMS OF THE ORDER THAT RELATE TO CHILD CUSTODY. ANY

PERSON WHO KNOWINGLY PRESENTS FOR ENFORCEMENT AN ORDER

THAT IS INVALID OR NO LONGER IN EFFECT COMMITS AN OFFENSE THAT

MAY BE PUNISHABLE BY CONFINEMENT IN JAIL FOR AS LONG AS TWO

YEARS AND A FINE OF AS MUCH AS $10,000.

WARNINGS TO PARTIES: FAILURE TO OBEY A COURT ORDER FOR CHILD

SUPPORT OR FOR POSSESSION OF OR ACCESS TO A CHILD MAY RESULT

IN FURTHER LITIGATION TO ENFORCE THE ORDER, INCLUDING

CONTEMPT OF COURT. A FINDING OF CONTEMPT MAY BE PUNISHED BY

CONFINEMENT IN JAIL FOR UP TO SIX MONTHS, A FINE OF UP TO $500 FOR

EACH VIOLATION, AND A MONEY JUDGMENT FOR PAYMENT OF

ATTORNEY'S FEES AND COURT COSTS.

Weiner- Agreed Final Decree of Divorce Page 36 '-1 ,~,I

FAILURE OF A PARTY TO MAKE A CHILD SUPPORT PAYMENT TO THE

PLACE AND IN THE MANNER REQUIRED BY A COURT ORDER MAY RESULT

IN THE PARTY'S NOT RECEIVING CREDIT FOR MAKING THE PAYMENT.

FAILURE OF A PARTY TO PAY CHILD SUPPORT DOES NOT JUSTIFY

DENYING THAT PARTY COURT-ORDERED POSSESSION OF OR ACCESS

TO A CHILD. REFUSAL BY A PARTY TO ALLOW POSSESSION OF OR

ACCESS TO A CHILD DOES NOT JUSTIFY FAILURE TO PAY

COURT-ORDERED CHILD SUPPORT TO THAT PARTY.

Change of Petitioner's Name

IT IS ORDERED AND DECREED that Katherine F. Weiner's name is

changed to Katherine Rose Warren.

Court Costs

IT IS ORDERED AND DECREED that costs of court are to be borne by the

party who incurred them.

Resolution of Temporary Orders

IT IS ORDERED AND DECREED that Petitioner and Respondent are

discharged from all further liabilities and obligations imposed by the temporary

order of this Court rendered on August 24, 2011, except as otherwise stated herein

with regard to provisions for sale of the home.

Discharge from Discovery Retention Requirement

Weiner· Agreed Final Decree of Divorce Page 37 ....

IT IS ORDERED AND DECREED that the parties and their respective

attorneys are discharged from the requirement of keeping and storing the

documents produced In this case in accordance with rule 191.4(d) of the Texas

Rules of Civil Procedure.

Decree Acknowledgment

Petitioner, Katherine F. Weiner, and Respondent, Andy I. Weiner, each

acknowledge that before signing this Final Decree of Divorce they have read this

Final Decree of Divorce fully and completely, have had the opportunity to ask any

questions regarding the same, and fully understand that the contents of this Final

Decree of Divorce constitute a full and complete resolution of this case. Petitioner

and Respondent acknowledge that they have voluntarily affixed their signatures to

this Final Decree of Divorce, believing this agreement to be a just and right division

of the marital debt and assets, and state that they have not signed by virtue of any

coercion, any duress, or any agreement other than those specifically set forth in

this Final Decree of Divorce.

Indemnification

Each party represents and warrants that he or she has not incurred any

outstanding debt, obligation, or other liability on which the other party is or may be

liable, other than those described in this decree. Each party agrees and IT IS

ORDERED that If any claim, action, or proceeding Is hereafter Initiated seeking to

Weiner- Agreed Final Decree of Divorce Page 38 hold the party not assuming a debt, an obligation, a liability, an act, or an omission

of the other party liable for such debt, obligation, liability, act or omission of the

other party, that other party will, at his or her sole expense, defend the party not

assuming the debt, obligation, liability, act, or omission of the other party against

any such claim or demand, whether or not well founded, and will indemnify the

party not assuming the debt, obligation, liability, act, or omission of the other party

and hold him or her harmless from all damages resulting from the claim or

demand.

Damages, as used in this provision, includes any reasonable loss, cost, expense,

penalty, and other damage, including without limitation attorney's fees and other

costs and expenses reasonably and necessarily incurred in enforcing this

indemnity.

IT IS ORDERED that the Indemnifying party will reimburse the indemnified

party, on demand, for any payment made by the indemnified party at any lime after

the entry of the divorce decree to satisfy any judgment of any court of competent

jurisdiction or in accordance with a bona fide compromise or settlement of claims,

demands, or actions for any damages to which this indemnity relates.

The parties agree and IT IS ORDERED that each party will give the other

party prompt written notice of any litigation threatened or instituted against either

party that might constitute the basis of a claim for Indemnity under this decree.

Weiner- Agreed Final Decree of Divorce Page 39 Clarifying Orders

Without affecting the finality of this Final Decree of Divorce, this Court

expressly reserves the right to make orders necessary to clarify and enforce this

decree.

Relief Not Granted

IT IS ORDERED AND DECREED that all relief requested In this case and

not expressly granted Is denied. This is a final judgment, for which let execution

and all writs and processes necessary to enforce this judgment Issue. This

Weiner- Agreed Final Decree of Divorce Page40

i .. ' ........

APPROVED AS TO FORM ONLY:

FULLENWEIDER WILHITE 4265 San Felipe Street Suite 1400 Houston, Texas 77027 Tel: (713) 624-4100 Fax: (713) 624-4141 1

By~~ Ra1ldaiiB:W(hlt6 Attorney for Katherine F. Weiner State Bar No. 21476400

JENKINS KAMIN, LLP Two Greenway Plaza, Suite 600 Houston, Texas 77046 713-600-5500 Telephone 713-600- Telefa

By:--:-----co~~z.;_.L;~--- Joan . Jenkln"'<-__..- Attorney for Andy I. Weiner State Bar Number 10621900

APPROVED AND CONSENTED TO AS TO BOTH FORM AND SUBSTANCE:

Weiner- Agreed Final Decree of Divorce Page 41 No. ______________

INRE: § IN THE PROBATE COURT § § NO. ______________ DAVID ABRAHAM WEINER § 1994TRUST § HARRIS COUNTY, TEXAS

AFFIDAVIT OF KATHERINE F. WARREN

Before me, the undersigned notary, on this day personally appeared KATHERINE F.

WARREN, the affiant, whose identity is known to me. After I administered an oath, affiant

testified as follows:

1. My name is Katherine F. Warren. I am over eighteen years of age, of sonnd mind, and

capable of making tllis affidavit. The facts stated in this affidavit are within my personal

knowledge and are true and correct.

2. On December 13, 1994, Andy I. Weiner and I created the DAVID ABRAHAM WEINER

1994 TRUST (the "Trust") for the benefit of our son, David W. Warren, formerly known

as David A. Weiner. Andy I. Weiner and I are the trustors and co-ttustees of the Trust.

3. The purpose of the Trust is to provide for the best interests of our son, David. A primary

purpose of the Trust is to fund his educational costs. I believe that it is in David's best

interest to receive a quality education.

4. David is enrolled as a freshman at Rice University in Houston, Texas. He began

attending classes in August 2013.

5. Andy I. Weiner and I were granted a divorce on March 29, 2012. As part of the divorce

decree, the trust was to continue as provided under the tmst agreement. Under the trust

agreement, Andy I. Weiner and I are required to act jointly as co-trustees.

1 txh;hrf ~ 6. Although David is the primary beneficiary of the Trust, he applied for fmancial aid with

Rice University prior to the start of the Fall 2013 semester. David was denied financial

aid because of the Trust. The financial aid department of Rice University explained that

where students are the beneficiaries of trusts like the DAVID ABRAHAM WEINER

1994 TRUST, that the school assumes that the trust funds are intended for the payment of

college expenses.

7. David received a tuition bill from Rice University in July 2013. I wrote a check from the

Trust's Fidelity account for $20,000 or around August 1, 2013. The check was returned

to Rice University unpaid because Andy I. Weiner requested that Fidelity not honor the

check.

8. After the check was returned to Rice University unpaid, David received a letter from the

university advising him that his tuition payment was overdue. I requested that Fidelity

wire $20,000 to David, with which he paid his tuition. It took approximately six weeks

for the tuition payment to be credited to David's account with Rice University.

9. I believe that it is detrimental to the best interests of David for Andy I. Weiner and I to

continue acting as co-trustees of the Trust. Our disagreements regarding distributions of

David's behalf could seriously inhibit his ability to receive a wonderful education.

10. David is an intelligent adult and is capable of using the Trust assets for his best interests.

I believe that David has shown maturity beyond most other college students his age. It

would be in his best interests to be given the Trust assets for his college tuition, rather

than to face the uncertainty inherent in the current situation. _ _ 2013. Sworn to and subscribed before me by Katherine F. Warren on CJ •3 0

ANGIE K BYRNES My commission Expires seplember 16. 2015 PI~OBATE COURT.4 No. 425,576 ' . r--' INRE: § IN THE PROBA,rE'¢,ouRt, •)j § :;,:: [<' n § N0.4 r~,

DANIEL STEPHEN WEINER § -:::-~ nt ",> ~~\

1996TRUST § HARRIS COUNTY,'TEXAS ~ c- ~- .,.,. ' ·(it\

FIRST AMENDED ORIGINAL PETITION FOR MODIFICATION OF TRUST and 0 RESPONSE TO PLEA IN ABATEMENT AND PLEA TO THE JURISDICTION

NOW COMES Katherine F. Warren as next friend of Daniel S. Weiner, a mmor,

Petitioner herein, and files this First Amended Original Petition for Modification of Trust for the

DANIEL STEPHEN WEINER 1996 TRUST, a true and correct copy of which is attached hereto

as "Exhibit A" and is incorporated for all purposes. Petitioner respectfully shows the Court as

I. Katherine F. Warren appears as next fi'iend of Daniel S. Weiner pursuant to Rule 44 of

the Texas Rules of Civil Procedure and files this action on his behalf in his capacity as

beneficiary of the DANIEL STEPHEN WEINER 1996 TRUST ("Trust"). Daniel S.

Weiner, a minor, was born on March 11, 1996. He will be an adult on March II, 2014.

No legal guardian or attorney ad litem has been appointed for DanielS. Weiner.

2. Daniel S. Weiner ("Primary Beneficiary") has an interest in tltis proceeding under Texas

Trust Code § 111.004(7). He is also a necessary pmiy under Texas Trust Code §

115.011(2) because he is the primary beneficiary named in the Trust.

3. Katherine F. Warren has the exclusive right to represent Daniel S. Weiner in legal action

and to make decisions of substantial legal significance concerning him pursuant to the EXHIBIT exhibitsticker.com

TAB H Agreed Final Decree of Divorce ("Divorce Decree"), Cause No. 2011-01040 in the

District Court of the 309'" Judicial District in Hanis County, Texas, which is attached as

"Exhibit B" and incorporated for all pmposes. Texas Trust Code§ 115.013(c)(3) petmits

a parent to represent her child as guardian ad litem or next friend if there is no conflict of

interest and no guardian of the estate or guardian ad litem has been appointed. Ms.

Wan·en's interests do not conflict with those of DanielS. Weiner.

4. Katherine F. Wanen is an individual acting as tmstee of the Tmst. Ms. WmTen is joined

as a Respondent herein because she has an interest in the proceeding under Texas Tmst

Code § 111.004(7) and is a necessary party pursuant to Texas Tmst Code §

115.011(b)(4). She cmTently resides at 1226 Muirfield Place, Houston, Hanis County,

Texas 77055.

5. Andy I. Weiner is an individual acting as trustee of the Tmst. Mr. Weiner is joined as a

Respondent herein because he has an interest in this proceeding under Texas Tmst Code

§ 111.004(7) and is a necessary party pursuant to Texas Trust Code§ 115.011(b)(4). Mr.

Weiner currently resides at 1200 Post Oak Blvd., Apmiment 907, Houston, Texas 77056.

6. The situs of the Trust is Houston, Hanis County, Texas.

7. The subject matter of this dispute involves the management and modification of the Trust

estate of the DANIEL STEPHEN WEINER 1996 TRUST. This Court has jurisdiction

over this subject matter pursuant to Texas Trust Code§ 115.001(d)(1) and Texas Probate

Code§ 4G.

2 RESPONSE TO PLEA IN ABATEMENT

8. Respondent Andy I. Weiner filed a Plea in Abatement in this action alleging that he had

commenced an earlier suit on the same subject matter involving the same patties in the

3091h Judicial Disllict. In order to succeed on his Plea in Abatement, Mr. Weiner must

show that I) he commenced suit first, 2) the suit is still pending, 3) the same parties are

involved, and 4) the controversies are the same. In re Sims, 88 S.W.3d 301, 303 (Tex.

App. - San Antonio 2002, Wiit granted). The undisputed record shows that the Mr.

Weiner cannot meet the last two requirements. On their face, Mr. Weiner's pleadings

show that the parties are not the same in the District Comt and the Probate Court. Daniel

S. Weiner is not a party in the District Court action. Daniel S. Weiner would be a

necessary party to a suit involving the DANIEL STEPHEN WEINER 1996 TRUST

because he is a named beneficiary. Tex. Trust Code§ 115.01l(b)(2). A lack of necessary

parties deprives the first court of dominant jurisdiction. Mission Res. v. Garza Energy

Trust, 268 S.W.3d 301, 328 (Tex. App. Corpus Christi 2005). A plaintiff who is not a

pmty to a plior suit is fi·ee to choose his forum. Wyatt v. Shaw Plumbing Co., 760 S.W.2d

245, 248 (Tex. 1988). A defendant, however, is not at libetty to decline to do battle in the

forum chosen by the plaintiff. Id. Accordingly, Mr. Weiner's Plea in Abatement should

be denied.

9. Nor can Mr. Weiner show that he had a prior case involving the same subject matter

when Petitioner filed his case in the Probate Comt. Two controversies involve the same

subject matter when the issues presented in each case are "inherently intenelated" - i.e.

one controversy cannot be resolved without resolving the other. In re Puig, 351 S.W.3d

301, 305 (Tex. 2011); Wyatt, 760 S.W.2d at 247. That is not the case here. The pleadings

3 on their face reveal that the subject matters in the two actions are wholly dissimilar. The

alienation issues can be resolved without modifying the Tmst and the Trust can be

modified without resolving the alienation issues.

10. The hemi of Mr. Weiner's Petition to Modify Parent-Child Relationship ("SAPCR" 1)

filed on August 14, 2013 is a claim of alienation from his children allegedly caused by

Katherine F. Wan·en, his ex-wife. See Suppotiing Affidavit to Exhibit A to Mr. Weiner's

Plea in Abatement. Mr. Weiner's SAPCR contained a litany of grievances and relief

requested in order to stop the alienation. Among them was a request for the exclusive

right to consent to the children's psychiattic and psychological treatment, to manage their

estates, 2 to represent them in legal action, and to exercise a fully expanded Standard

Possession Order. Mr. Weiner also requested temporary orders for psychological

evaluation of the whole family, the appointment of an Amicus Attorney, mandatory

alternative dispute resolution ("ADR"), access to the children's health care records, and

enforcement of the Divorce Decree's order that the Fidelity Trust accounts be changed to

"and" accounts. He also requested a temporary restraining order to prevent Ms. Wan·en

from withdrawing the children from school where they are presently enrolled and making

disparaging remarks about him in front of the children. And finally, he requested a

permanent injunction to prevent Ms. Wan·en from changing the names of the children.

There was no mention of Trust management or modification and hence no inherent

intenelation of the initial subject matter of the two suits. In re Puig, 351 S.W.3d at 305;

Wyatt, 760 S.W.2d at 247.

1 Suit Affecting the Parent-Child Relationship ("SAPCR") means a suit filed in which the appointment of a managing conservator or a possessory conservator, access to or support of a child, or establishment or termination of the parent-child relationship is requested. Tex. Family Code§ 101.032. 2 The children have a Unifonn Transfer to Minors Account ("UTMA"), which Ms. WaiTen was awarded sole and exclusive control of on page 9 of the original Divorce Decree dated March 29, 2012.

4 II. It was only after Petitioner filed suit to modify the Trust on September 30, 2013 that Mr.

Weiner amended hiss pleadings in the District Court on October 18, 2013 to request "the

exclusive right to manage the existing ttusts of the children." See page 2 of Exhibit B to

Mr. Weiner's Plea in Abatement. This addition is the only change that was made in the

amended pleadings. See Mr. Weiner's Exhibits A and B to his Plea in Abatement. In

essence, Mr. Weiner amended his pleading to set up a new subject matter in order to

obtain dominant jurisdiction in the District Court. But this is directly contrary to the

Texas Supreme Court's ruling in State of Texas v. Boyd, in which the Court held that a

party cannot obtain dominant jurisdiction by amending its pleadings in the first court to

set up a subject matter similar to a different case in a second court involving the same

parties. State of Texas v. Boyd, 136 S.W.2d II 07 (Tex. 1940). The plaintiff in Boyd

amended its pleading in the Ha!Tis County District Court to set up a similar subject matter

as another suit involving the same defendant in Travis County. The plaintiff then filed a

plea in abatement alleging that it had a prior suit on the same subject matter pending in

Han-is County. The Court held that such action did not bestow dominant jurisdiction on

the first case because they were wholly dissimilar prior to the amendment. Id. These

facts are identical to the case at bar in which Mr. Weiner amended his parent-child

alienation case against his ex-wife to add a new subject matter- management of the Trust

estate - and then alleged that he had a prior suit pending on the same subject matter as

Petitioner's case in the Probate Court. But the law is clear that amending a pleading to

set up a subject matter similar to a second action does not give the first action dominant

jurisdiction where the subject matter of the two cases were "wholly dissimilar" prior to

the amendment. Id.

5 RESPONSE TO PLEA TO THE JURISDICTION

12. Mr. Weiner also filed a Plea to the Jurisdiction on October 23, 2013 alleging that the

District Court has continuing exclusive jurisdiction over matters pertaining to the Trust

estate. But that asse1iion is directly contrary to the statute. Texas Family Code §

155.001(a) confers exclusive continuing exclusive jurisdiction over only the matters

provided for in Title 5 of the Texas Family Code. These include "orders regarding

managing conservatorship, possessory conservatorship, possession of and access to the

child, and support of the child." Tex. Family Code§ 155.003(a). The limits of the District

Comi's continuing exclusive jurisdiction are not boundless. They include only those

matters expressly enumerated in Texas Family Code § 155.003(a), which are not

involved in Petitioner's action to modifY the Trust. Accordingly, this Court should deny

Mr. Weiner's Plea to the Jurisdiction.

13. A hearing is scheduled on the Plea in Abatement and the Plea to the Jurisdiction for

November II, 2013 at I :30 p.m. in this Court.

14. Venue of this proceeding is proper in this Comi pursuant to Texas Trust Code §

15. The Trust is an inter vivos minor's trust created under Internal Revenue Code§ 2503(c)

by Ms. Wan·en and Mr. Weiner by agreement dated March 20, 1996 for the benefit of

their son, DanielS. Weiner, the Primary Beneficimy and Petitioner.

6 16. At the present time, Daniel S. Weiner is the only beneficiary of the Trust. Daniel S.

Weiner is a high school senior and straight-A student at The Kincaid School in Houston,

Texas. He is completing applications to attend college in the Fall of 2014 and is

concemed about being able to depend on distributions fi·om the Tmst to help pay for his

college.

17. The Tmst estate consists of marketable securities and cash in the approximate value of

$113,000 as of August 31, 2013.

18. The Trust is authorized under Section A-1 to make disttibutions to the Ptimary

Beneficiary as follows:

"The income of the trust may be accumulated and retained, in

whole or in pati, or the tmstee may distribute to Daniel, fi·om time

to time, so much or all of the bust estate as, in the trustee's

discretion, is in Daniel's best interests."

19. Pursuant to Section A-2 of the Trust, the Ptimary Beneficiary may withdraw all or part of

the Trust estate within 60 days after becoming age 21, and may thereby te1minate the

trust as to the pati withdrawn. If the Primaty Beneficiary does not exercise his

withdrawal tight, the Trust continues until the Ptimary Beneficiary becomes age 30.

20. Section A-2 of the Trust provides that in the event the Primary Beneficiary should die

before the Trust tenninates, then all assets remaining in the Trust shall be held or

distributed by the Trustee for the benefit of those in favor of whom the Primary

Beneficiary exercises a power of appointment, or otherwise in the following order:(!) to

the Ptimary Beneficiary's descendants, (2) if none of the descendants are then living, to

7 the trustors' descendants, (3) if none of the trustors' descendants are then living, to the

21. The initial and current bus tees of the Trust are Ms. Warren and Mr. Weiner. In the event

that both Mr. Weiner and Ms. Warren cease to act as tmstee, Bayle Weiner Drubel, Mr.

Weiner's sister, who is believed to live in Dmtmouth, Massachusetts, is appointed

successor tmstee under Section D-l(a) of the Trust.

22. The tmstees were granted a divorce on March 29, 2012. The Divorce Decree ordered

that:

"the following children's trusts are held in ilTevocable tmsts,

which shall continue as written, and that each party will take any

and all necessary steps to provide full co-trustee ownership and

control of each such account including the placing of such

accounts in a deposit and withdrawal agreement requiling both co-

trustees to disburse funds; also known as an "and" account:

I. Fidelity Trust Acct Ending in #8634 (David)

2. Fidelity Trust Acct Ending in #3958 (Daniel)

3. Fidelity Trust Acct Ending in #1942 (Michael)."

See Exhibit B, page I 0.

23. The Texas Trust Code provides that on the petition of a beneficiary, a Court may order

that the trustee be changed or that the trust be otherwise modified if modification of

administrative, non-dispositive tenns of the trust is necessary or appropriate to prevent

waste or avoid impainnent of the Trust's administration. Tex. Trust Code §

112.054(a)(3).

8 24. Petitioner believes that the inability of the trustees to agree on management of the Trust

has impaired the Tmst's administration. Modification of the Tmst is necessary to prevent

the tmstees' personal issues fi·om hindering their ability to effectively administer the

Trust.

25. Petitioner requests that the Court order that the Tmst be modified to allow Daniel S.

Weiner to become trustee of the Trust upon attaining age 18 on March 11, 2014; that

modification of the Trust will further the purposes of the Trust; that modifying the Trust

is necessary or appropriate to prevent waste or avoid impaitment of the Tmst's

administration; and that the Court enter such other orders to effect the modification of the

26. Petitioner brings this action for the purpose of preserving and protecting the interests of

the Trust estate and its Primary Beneficiary. The relief sought herein is necessary to

enable the Tmst to fulfill its intended purposes. Accordingly, Petitioner is entitled to

recover reasonable attomey's fees and court costs from the Trust pursuant to Texas Trust

Code § 114.064 ("In any proceeding under this code the comt may make such award of

costs and reasonable and necessary attomey's fees as may seem equitable and just"). If

any of the other patties to this proceeding retain counsel to represent their interests in this

cause, the Court should detennine whether all or any portion of the attorney's fees and

court costs incurred by these parties should be paid by the Tmst.

9 PRAYER

WHEREFORE PREMISES CONSIDERED, Petitioner prays that the Court grant the

requested relief and deny Mr. Weiner's Plea in Abatement and Plea to the Jurisdiction.

Petitioner further prays for such other and further relief to which Petitioner is justly entitled.

Cantrell & Cantrell, PLLC

By:~· Carol A. Cantrel , Attorney for PetitiOner Texas Bar No.: 24043592 Meredith N. Mciver Texas Bar No.: 24078974 3700 Buffalo Speedway, Suite 520 Houston, TX 77098 Phone: 713-333-0555 Fax: 713-333-0550

10 CERTIFICATE OF SERVICE

I hereby certifY that a true and correct copy of the foregoing instrument has been duly served, either by hand delivery, certified mail, return receipt requested, electronic service, or facsimile, to counsel of record indicated below, on this J.\~ day of "-.\0~, 2013.

Sarah Patel Pacheco Kathleen Tanner Beduze Crain Caton & James Five Houston Center, 1401 McKinney, 17th Floor Houston, TX 77010 spacheco@craincaton.com 713-658-1921 (facsimile)

CAROL A. CANTRELL Exhibit A

By this trust agreement, Andy I. Weiner and Katherine Friedman Weiner, husband and wife,· both of Harris County, Texas, as "trusters," establish the Daniel Steven Weiner 1996 Trust for the benefit of their son, Daniel steven Weiner ("Daniel"), born March 11, 1996. Trusters grant, assign and deliver to Andy I. Weiner and Katherine Friedman weiner, both of Harris County, Texas, as "trustees," the property described in Attachment A. Attachment A, which is captioned "Initial Contributions to the Daniel Steven weiner 1996 Trust," is incorporated by reference as a part of this trust agreement. This trust agreement and the trusts established by it are irrevocable. No person shall have the right to revoke or amend this trust agreement or any of its provisions. However, property acceptable to the trustee may be added to any trust from time to time in the future by trusters or by any other person (including additions pursuant to the provisions of the last will of any person).

All references to "trustee" shall refer to the person or persons then acting as such.

A. PRIMARY TRUST

A-1. Distributions. The income of the trust may be accumulated and retained, in whole or in part, or the trustee may distribute to Daniel, from time to time, so much or all of the trust estate as, in the trustee's discretion, is in Daniel's best interests.

A-2. Termination. Daniel may withdraw any part or all of the trust estate within 60 days after he becomes age 21, and may thereby terminate the trust as to the part withdrawn. Exercise of this withdrawal right shall be by one or more written instruments delivered to the trustee within the 60-day period. If or to the extent that Daniel does not exercise this withdrawal right, the trust shall continue until Daniel becomes age 30 or dies before that age, at which time the trust estate shall be distributed:

(a) To Daniel.

(b) If Daniel is not then living, to such one or more persons, corporations or organizations (including Daniel's estate), as Daniel appoints by a will which specifically refers to this power of appointment. If or to the extent that Daniel does not effectively exercise this power of appointment, the trust estate shall be distributed:

(1) To Daniel's descendants,

(2) If none of Daniel's descendants is then living, to trusters' descendants. ( 3) If none of trusters 1 descendants is then living, to trusters' heirs.

A-3. Payment of Taxes. If Daniel's will contains no contrary directions, the trustee shall pay from the trust estate the entire increment in taxes payable by reason of Daniel's death (including any interest or penalties thereon) to the extent (if any) that the total of such taxes is greater than would have been imposed if no portion of the trust estate were taken into account in determining such taxes.

B. CONTINGENT TRUSTS

B-1. Trusts Established. Any portion of a trust estate upon the trusts termination (other than a portion withdrawn by Daniel pursuant to Paragraph A-2) which would be distributable to a beneficiary who is under age 30 or to a beneficiary who is under a legal disability instead shall be distributed to the trustee of a Contingent Trust (unless otherwise directed by the valid exercise of a power of appointment). Each beneficiary's portion so distributed shall be held and administered as the initial trust estate of a separate trust for the beneficiary. However, if a Contingent Trust is already in existence for that beneficiary, any additional portion to be distributed to the trustee of a Contingent Trust for the beneficiary shall be added to the trust estate of the existing contingent Trust.

B-2. Distributions. The income of each Contingent Trust may be accumulated and retained, in whole or in part, or the trustee may distribute to the beneficiary for whom the trust was established, from time to time, so much or all of the trust estate as, in the trustee's discretion, is in the beneficiary's best interests.

B-3. Termination. Each contingent Trust shall terminate when the beneficiary for whom the trust was established has become age 30 and is under no legal disability or upon the beneficiary's earlier death. Upon termination, the trust estate shall be distributed:

(a) To the beneficiary.

(b) If the beneficiary is not then living, to such one or more persons, corporations or organizations as the beneficiary appoints by a will which specifically refers to this power of appointment. If none of the beneficiary's descendants is then living, this power may not be exercised in favor of the beneficiary, the beneficiary's estate, the beneficiary's creditors or the creditors of the beneficiary's estate. If or to the extent that the beneficiary does not effectively exercise this power of appointment, the trust estate shall be distributed:

(1) To the beneficiary's descendants.

-2- (2) If none of the beneficiary's descendants is then living, to the descendants of the beneficiary's nearest ancestor who was one of trusters' descendants and who has descendants then living. (3) If none of these persons is then living, to trusters, descendants. ( 4) If none of trusters' descendants is then living, to trusters' heirs. C. DISTRIBUTIONS

c-1. Distributions to or for Beneficiaries. During the term of a trust, any distribution to be made to a beneficiary from the trust may be made (i) to the beneficiary, (ii) if the beneficiary is under a legal disability or if the trustee determines that the beneficiary is unable to properly manage his affairs, to a person furnishing support, maintenance or education for the beneficiary or with whom the beneficiary is residing, for expenditure on the beneficiary's behalf, or (iii) to a custodian for a minor beneficiary, as selected by the trustee, under the Uniform Gifts to Minors Act of any state. Alternatively, the trustee may otherwise apply all or a part of the distribution for the beneficiary 1 s benefit. However, no such distribution shall be made to a trustor, to any spouse of a trustor, or in any manner that discharges a legal obligation (including an obligation of support) of a trustor or any spouse of a trustor. Any distribution under this paragraph shall be a full discharge of the trustee with respect thereto.

c-2. Best Interests of Beneficiary. In making distributions in the "best interests" of a beneficiary, the trustee may consider the age of the beneficiary, the costs of the beneficiary's support, maintenance, education and comfort without regard to any other resources available to the beneficiary for these purposes, the effect of any distribution upon the income and transfer tax liability of the beneficiary or of the trust, and any other factors deemed relevant by the trustee.

D. OFFICE OF TRUSTEE

D-1. Successor Trustee, Co-Trustee. The following provisions shall apply to each separate trust established under this trust agreement:

(a) Successor Trustee. Should Andy I. Weiner or Katherine Friedman Weiner cease to act as trustee, for any reason, the one remaining shall continue to act as trustee. Should both Andy I. Weiner and Katherine Friedman Weiner cease to act as trustees, for any reason, trusters appoint Bayle Weiner Drubel as successor trustee.

-3- (b) Appointment of Successor Trustee by Trustee. At any time after qualifying as trustee, any trustee may appoint a successor trustee to act in his place, either immediately or in the future upon any stated contingency, and may thereby supplement the provisions of subparagraph (a). (c) Appointment of Successor Trustee by Beneficiaries. If at any time there is no trustee acting and none has been appointed, a majority of the beneficiaries (acting through the beneficiary's natural or legal guardian or legal representative, in the case of a beneficiary under a legal disability) who might then be entitled to receive a distribution from the trust estate shall appoint a successor trustee. (d) Appointment of Co-Trustee. The trustee (acting unanimously if more than one) may appoint one or more co-trustees. (e) Who May Be Appointed. A successor trustee or co-trustee may be any individual, bank or trust company and may be domiciled anywhere. (f) Procedure for Appointment. Appointment shall be made by written instrument filed with the trust records. Any such appointment may be changed or revoked prior to the date it becomes effective. Any such appointment may be limited in any manner deemed advisable by the person making the appointment, including, for example, restricting the power over distributions as necessary to avoid the imposition of any tax upon the trust, the appointee or the appointee's estate. ·

D-2. Resignation of Trustee. A trustee may resign from a trust without the necessity of any court proceeding upon meeting these conditions: (a) Notice. At least 30 days' written notice (if not waived) shall be given to each beneficiary who might then be entitled to receive a distribution from the trust estate, If a beneficiary is under a legal disability, notice shall be given to (or waived by) the beneficiary's natural or legal guardian. (b) Accounting. If and to the extent required by the successor trustee, an accounting for the administration of the trust shall be given to the successor trustee. The successor trustee shall be fully protected in relying upon such accounting.

D-3. Rights and Liabilities. (a) Bond Not Required. No bond or other security shall be required of any trustee.

(b) Liabilities. This agreement shall always be construed in

-4- favor of the validity of any act by or omission of any trustee. A trustee shall not be liable for any act or omission except in the case of gross negligence, bad faith or fraud. Specifically, in assessing the propriety of any investment of a trust estate, the overall performance of the entire trust estate shall be taken into account. (c) Compensation. Each trustee shall be entitled to receive reasonable compensation for services actually rendered to a trust. E. ADMINISTRATION E-1. General Powers of Trustee. To carry out the trust purposes but subject to any limitations stated elsewhere herein, the trustee of each trust shall have the following powers, which may be exercised free from court supervision, and which shall exist until all of the trust estate has been distributed: (a) Trust Estate. The trustee may invest and reinvest all or any part of the trust estate in property of any description and may retain as a part of the trust estate any property acquired at any time and in any manner. Specifically, and without regard to the provisions of any applicable state law, the trustee may retain, or invest and reinvest in, property unproductive of income, shares of open or closed end investment trusts or companies, wasting assets, and any other property, regardless of location and without regard to any requirement of diversification as to kind or amount. (b) Business Interests. The trustee may continue operation of any business entity, in any business form, with all or any part of the trust estate, and may reorganize or liquidate any such entity at any time. (c) Transfers. Loans. The trustee may lease, sell, transfer, or encumber in any manner (including with purchase money mortgages) all or any part of the trust estate, and may loan or borrow money in any manner (including by joint and several obligations) with or without security. Subject to the provisions of Paragraph E-3(a), the trustee may purchase assets from the estate of a trustor and may loan funds to the estate of a trustor at such rate Of interest and with such security as the trustee determines to be in the best interests of the current beneficiaries of the trust. (d) Dealings With Related Parties. The trustee may deal with any person or entity regardless of any relationship or identity of any trustee to or with that person or entity and may hold or invest all or any part of the trust ef;tate in common or undivided interests with that person or entity. (e) Agents, Employees. The trustee may employ and compensate agents and other employees ~nd may delegate to them any and all discretions and powers. -5- (f) Partitions. Distributions. The trustee may partition all or any part of any interest, may pay and receive such moneys or properties as may be necessary to equalize differences, and in so doing (i) may make any distribution of all or any part of the trust estate in any manner (including composing shares differently) and (ii) may evaluate any property, which valuation shall be binding on all beneficiaries. (g) Claims, Controversies. The trustee may maintain and defend any claim or controversy by or against the trust without the joinder or consent of any beneficiary.

(h) Additional Powers. In addition, the trustee shall have all rights, privileges and powers now or hereafter granted to trustees in Texas, including those granted under the Texas Trust Code. Any subsequent legislation or regulation expanding or limiting the rights, privileges and powers granted a trustee shall apply to all trusts hereunder unless the trustee elects not to have such legislation or regulation apply to a particular trust by a written instrument filed with the trust records. However, the provisions made for the various beneficiaries under this trust agreement are exclusive. Any statute that purports to enlarge the class of beneficiaries to whom distributions may be made or the purposes for which distributions may be made shall not apply to any trust. All trust powers may be exercised upon such terms as the trustee deems advisable and may affect trust properties for any length of time regardless of the duration of the trust. Generally, and subject only to the terms of this trust agreement, the trustee shall hold, manage, control, use, invest, reinvest, and dispose of the trust estate to the same extent as if the trustee were the fee simple owner thereof.

E-2. Principal and Income Determinations. The receipts, disbursements and reserves of each trust may be allocated, on a cash or accrual basis, between principal and income in the trustee's discretion without regard to the provisions of any statute. To the extent the trustee does not exercise this discretionary power, the provisions of the Texas Trust Code shall control. E-3. Restrictions on the Exercise of Certain Powers.

(a) Dealings with Trust Estate. No power granted the trustee shall be construed to enable any person to purchase, exchange, or otherwise deal with or dispose of any trust estate for less than an adequate consideration in money or money's worth or to authorize loans to any person without adequate interest. No part of any trust estate may be (i) loaned to a trustor or to any spouse of a trustor or (ii) applied to the payment of premiums on policies of insurance on the life of a trustor or on the life of any spouse of a trustor.

-6- (b) Distributions to or for Trustee. Any power to make discretionary distributions to or for the benefit of a person who is serving as trustee of a trust (including distributions to the person's spouse and distributions in discharge of any legal obligation of the person) shall be exercisable solely by the trustee or trustees other than that person. If no other trustee is then serving, such power shall not be exercisable.

E-4. Release and Delegations of Powers. Any power granted to a trustee may be released, in whole or in part, temporarily or permanently. Except as provided in Paragraph E-3, any such power may be delegated, in whole or in part, temporarily or permanently, to any other trustee then acting. A release or delegation shall be by written instrument filed with the records of each trust to which the release or delegation applies.

F. DEFINITIONS AND GENERAL PROVISIONS

F-1. Trust Estate. "Trust estate" means all assets, however and whenever acquired (including income and accumulated income) 1 which may belong to a trust at any given time.

F-2. Descendants. "Descendants" means the legitimate children of the person or persons designated and the legitimate lineal descendants of such children, and includes any person adopted before becoming age 18 and the adopted person's descendants. A posthumous child shall be considered as living at the death of his parent. Whenever a distribution is to be made to the descendants of any person, the property to be distributed shall be divided into as many equal shares as there are living children of the person and deceased children of the person who left descendants who are then living. Each living child shall take one share and the share of each deceased child shall be divided among his then living descendants in the same manner. "Trusters' descendants" includes only those persons descended from both trusters. F-3. Heirs. Any distribution to be made to the "heirs" of a person shall be made to the individuals who would have inherited the person's personal property if the person had died intestate at the time the distribution is to be made, domiciled in Texas and not married, under the laws of Texas in force on the effective date of this trust agreement, with the shares of taking determined by those laws. However, both trusters and any spouse of a trustor shall be deemed to have died prior to the time that any such distribution is to be made. A distribution to "trusters• heirs" shall be made to the heirs of Andy I. Weiner. F-4. Internal Revenue Code. "Internal Revenue Code" means the Internal Revenue Code of 1986, as amended, or corresponding provisions of any subsequent federal tax laws.

-7- F-5. other Terms. The use of any gender includes · the other genders, and the use of either the singular or the plural includes the other.

F-6. Spendthrift Provision. No beneficiary shall have the power to anticipate, encumber, or transfer his interest in any trust estate in any manner. No part of any trust estate shall be liable for or charged with any debts, contracts, liabilities or torts of a beneficiary or subject to seizure or other process by any creditor of a beneficiary. Nothing in this paragraph shall be construed to limit the otherwise valid exercise of a power of appointment or right of withdrawal given by this trust agreement.

F-7. Texas Law Applies. The situs of the trusts established under this trust agreement is Texas. Wherever possible, the laws of Texas shall apply to the construction, administration and validity of each trust. F-8. Maximum Term of Trusts. No trust shall continue for a period longer than 21 years after the death of the last to die of trusters and all of trusters' descendants who are living on the effective date of this trust agreement. Any trust still in force at the end of such period shall terminate, and the trust estate shall be distributed to the beneficiary for whom the trust was established.

F-9. Powers of Appointment Exercisable by Beneficiaries. In exercising a power of appointment given to a beneficiary by this trust agreement, the beneficiary may appoint the property subject to the power outright to the appointee, in trust, or to a custodian for the appointee under the Uniform Gifts to Minors Act of any state. If the beneficiary appoints to a custodian, he may select the custodian. If the beneficiary appoints in trust, he may select the trustee or trustees, may establish such administrative terms for the trust as he deems appropriate, and may impose lawful spendthrift restrictions. He may give the trustee discretionary powers over the income and principal, and may create a trust that has several permissible distributees. He may create life interests or other limited interests in some appointees with future interests in favor of other appointees, may appoint different types of interests among the appointees, and may create new powers of appointment in a trustee or trustees or in any appointee. He may impose lawful conditions on an appointment and,, in general, may appoint to or among the appointees in any lawful manner.

In determining whether, in what manner and to what extent a testamentary power of appointment has been exercised by a beneficiary, the trustee may act in reliance upon a court order admitting an instrument to probate as the beneficiary's last will or an order finding that the beneficiary died intestate. Unless within six months after the beneficiary's death the trustee has actual notice of the existence of proceedings to probate a will of the beneficiary, the trustee shall assume that the beneficiary died

-8- intestate. The foregoing prov1s1ons are intended to expedite the prompt and efficient administration of the trust and to protect the trustee from any action taken or distribution made in accordance with these provisions. Nothing in this paragraph shall limit or qualify any power of appointment given by this trust agreement or any right which an appointee or taker in default of appointment may have against any person receiving a distribution from the trustee irrespective of the place of probate or of the time of discovery of a will exercising the power or any other action taken in the beneficiary's estate.

G. ACCEPTANCE BY TRUSTEE

By signing this trust agreement, the trustee (i) accepts these trusts and all of the rights, powers and duties attached to the office of trustee as provided herein, (ii) agrees to serve as trustee of the Daniel Steven Weiner 1996 Trust and of any Contingent Trusts which may be established under this trust agreement, (iii) acknowledges receipt of the property described in Attachment A, and (iv) agrees to hold and administer each trust estate in accordance with the terms of this trust agreement.

This trust agreement is executed effective as of the 20th day of March, 1996.

-9- ATTACHMENT A: INITIAL CONTRIBUTIONS TO THE DANIEL STEVEN WEINER 1996 TRUST

Katherine Friedman We1ner, Trustor and Trustee 3559:painsc\0157136

-10- " ... -· • 0 ' ~-

Exhibit B

NO. 2011-01040

IN THE MATTER OF § IN THE DISTRICT COURT THE MARRIAGE OF § § vr. wr sf~ KATHERINE F. WEINER AND ANDY I. WEINER F cI 01 § E d. o9TH JUDICIAL DISTRICT .I Dame t Clerk rc AND IN THE INTEREST OF M~ 2 9 20\Z DAVID A. WEINER, DANIELS. § WEINER AND MICHAEL H. Time: --uiH§ii~couUnin~0.T'&.ie.a;s,- - - WEINER, CHILDREN ey § oepu>1 HARRIS COUNTY, TEXAS

AGREED FINAL DECREE OF DIV:ORCE

On February 17, 2012, the Court heard the parties' agreement for the

terms of their Agreed Final Decree of Divorce as set out in the parties' Mediated

Settlement Agreement. Andy I. Weiner and his attorney, Eileen M. Gaffney

appearing for Joan F. Jenkins appeared in person and proved up the agreement.

After hearing the parties' agreement, the court set this case for entry.

Petitioner, Katherine F. Weiner, appeared at entry through her attorney of

Respondent, Andy I. Weiner, appeared in person and through attorney of

The making of a record of testimony was waived by the parties with the

Weiner- Agreed Final Decree of Divorce RECORDER'S MEMORANDUM Page 1 T\11& Instrument Is of poor quality

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consent of the Court.

Jurisdiction and Domicile

The Court finds that the pleadings of Petitioner ar.e in due form and contain

all the allegations, information, and prerequisites required by law. The Court,

after receiving evidence, finds that it has jurisdiction of this case and of all the

parties and that at least sixty days have elapsed since the d~te the suit was filed.

The Court further finds that, at the time this suit was filed, Petitioner had

been a domiciliary of Texas for the preceding six-month period and a resident of

the county in which this suit was filed for the preceding ninety-day period. All

A jury was waived, and questions of fact and of law were submitted to the

Agreement of Parlies

The Court finds that the parties have entered into an Agreement Incident to

Divorce, in a document separate from this Final Decree of Divorce. The Court

approves the agreement and incorporates it by reference as part of this decree as

if it were recited herein verbatim and orders the parties to do all things-necessary to

effectuate the agreement. A copy of the agreement is not filed with the records of

ii this Court.

I J" 0 Weiner- Agreed Final Decree of Divorce ~ '"0

"''€" u" The agreements in this Final Decree of Divorce were reached in mediation

with Harry L. Tindall. This Final Decree of Divorce is stipulated to represent a

merger of a mediated settlement agreement between the parties. To the extent

there exist any differences between the mediated settlement agreement and this

Final Decree of Divorce, this Final Decree of Divorce shall control in all instances.

IT IS ORDERED AND DECREED that Katherine F. Weiner, Petitioner, and

Andy I. Weiner, Respondent, are divorced and that the marriage between them is

dissolved on the ground of insupportability.

Children of the Maniage

The Court finds that Petitioner and Respondent are the parents of the

Name: David A. Weiner Sex: Male Birth date: June 14, 1994 Home state: Texas Social Security number: xxx-xx-x861 Driver's license number and issuing state: xxxxx273, Texas

Name: Daniel S. Weiner Sex: Male Birth date: March 11, 1996 Home state: Texas Social Security number: xxx-xx-x039 Driver's license number and issuing state: · xxxxx996Texas

Weiner- Agreed Final Decree of Divorce • i

Name: Michael H. Weiner Sex: Male Birth date: November 1, 1999 Home state: Texas Social Security number: xxx-xx-x735 Driver's license number and issuing state: N/A

The Court finds no other children of the marriage are expected.

The Court finds that the provisions in this decree relating to the rights and

duties of the parties with relation to the children, possession of and access to the

children, child support, and optimizing the development of a close and continuing

relationship between each party and the children constitute the parties' agreed ·

ConseNatorship

The Court, having considered the circumstances of the parents and of the

children, finds that the following orders are in the best interest of the children.

IT IS ORDERED that Katherine F. Weiner and Andy I. Weiner are appointed

Joint Managing Conservators of the following children: David A. Weiner, Daniel ~

"" '8 S. Weiner and Michael H. Weiner. ""~ .,. IT IS ORDERED that, at all times, Katherine F. Weiner, as a parent joint • "' "' [::; managing conservator, shall have the following rights: 00 ~

"'~ 1. the right to receive information from any other conservator of the .0

zs children concerning the health, education, and welfare of the children;

il ~ 0 A Weiner- Agreed Final Decree of Divorce Page4 "ll .E"" u I '

2. the right to confer with the other parent to the extent possible befor.e making a decision concerning the health, education, and welfare of the children;

3. the right of access to medical, dental, psychological, and educational records of the children;

4. the right to consult with a physician, dentist, or psychologist of the children;

5. the right to consult with school officials concerning the children's welfare and educational status, including school activities;

7. the right to be designated on the children's records as a person to be notified in case of an emergency;

8. the right to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the children; and

9. the right to manage the estates of the children to the extent the estates have been created by the parent or the parent's family.

IT IS ORDERED that, at all times, Andy I. Weiner, as a parent joint

1. the right to receive information from any other conservator of the children concerning the health, education, and welfare of the children;

2. the right to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the children;

3. the right of access to medical, dental, psychological, and educational records of the children;

li 4. the right to consult with a physician, dentist, or psychologist of the j children; § s 50 ~ Weiner -Agreed Final Decree of Divorce 'll ""'€ u" t •

5. the right to consult with school officials concerning the children's welfare and educational status, including school activities;

7. the right to be designated on the children's records as a person to be notified in case of an emergency;

8. the right to consent to medical, dental, and surgical treatment during an emergency involving. an immediate danger to the health and safety of the children; and

9. the right to manage the estates of the children to the extent the estates have been created by the parent or the parent's family.

IT IS ORDERED that, at all times, Katherine F. Weiner and Andy I. Weiner,

as parent joint managing conservators, shall each have the following duties:

1. the duty to inform the other conservator of the children in a timely manner of significant information concerning the health, education, and welfare of the children; and

2. the duty to inform the other conservator of the children if the conservator resides with for at least thirty days, marries, or intends to marry a person who the conservator knows is registered as a sex offender under chapter 62 of the Code of Criminal Procedure or is currently charged with an offense for which on conviction the person would be required to register under that chapter. IT IS ORDERED that this information shall be tendered in the form of a notice made as soon as practicable, but not later than the fortieth day after the date the conservator of the children begins to reside with the person or on the tenth day after the date the marriage occurs, as appropriate. IT IS ORDERED that the notice must include a description of the offense that is the basis of the person's requirement to register as a sex offender or of the offense with which t~e person is charged. WARNING: A CONSERVATOR COMMITS AN OFFENSE PUNISHABLE AS A CLASS C MISDEMEANOR IF THE CONSERVATOR FAILS TO PROVIDE THIS NOTICE.

IT IS ORDERED that, during her periods of possession, Katherine F.

Weiner -Agreed Final Decree of Divorce . 1

Weiner, as parent joint managing conservator, shall have the following rights and

1. the duty of care, control, protection, and reasonable discipline of the children; 2. the duty to support the children, including providing the children with clothing, food, shelter, and medical and dental care not involving an invasive procedure; -

3. the right to consent for the children to medical and_ dental care not involving an invasive procedure; and

4. the right to direct the moral and religious training of the children.

IT IS ORDERED that, during his periods of possession, Andy I. Weiner, as

parent joint managing conservator, shall have the following rights and duties:

1. the duty of care, control, protection, and reasonable discipline of the children;

2. the duty to support the children, including providing the children with clothing, food, shelter, and medical and dental care not involving an invasive procedure;

3. the right to consent for the children to medical and dental care not involving an invasive procedure; and

4. the right to direct the moral and religious training of the children.

IT IS ORDERED that Katherine F. Weiner, as a parent joint managing

1. the exclusive right to establish the primary residence and legal domicile of the children in Harris County, Texas or a county that is contiguous to Harris County, Texas, subject to the provisions hereinafter.

2. the exclusive right to consent to medical, dental, and surgical

Weiner- Agreed Final Decree of Divorce Page 7 treatment involving invasive procedures;

3. the exclusive right to consent to psychiatric and psychological treatment of the children;

4. the exclusive right to receive and give receipt for periodic payments for the support of the children and to hold or disburse these funds for the benefit of the children;

5. the exclusive right to represent the children in legal. action and to make other decisions of substantial legal significance concerning the children;

6. the exclusive right to consent to marriage and to enlistment in the armed forces of the United States;

7. the right, subject to the agreement of the other parent conservator, to make decisions concerning the children's education; 8. except as provided by section 264.0111 of the Texas Family Code, the independent right to the services and earnings of the children;

9. except when a guardian of the children's estates or a guardian or attorney ad litem has been appointed for the children, the independent right to act as an agent of the children in relation to the children's estates if the children's action is required by a state, the United States, or a foreign government; and

10. the exclusive duty to manage the estates of the children to the extent the estates have been created by community property or the joint property of the parent.

IT IS ORDERED that Andy I. Weiner, as a parent joint managing

conservator, shall have the right, subject to the agreement of the other parent

conservator, to make decisions concerning the children's education, and in this

regard, the Court finds that Andy I. Weiner has agreed for each child to remain at

the Kinkaid School through each child's graduation from such School, and that

there are other more specific provisions herein further delineating the obligation of

Andy I. Weiner to pay for the Kinkaid School for the children.

The Court finds that, in accordance with section 153.001 of the Texas

Family Code, it is the public policy of Texas to assure that children will have

frequent and continuing contact with parents who have shown the ability to act in

the best interest of the child, to provide a safe, stable, and nonviolent environment

for the child, and to encourage parents to share in the rights and duties of raising

their child after the parents have separated or dissolved their marriage. IT IS

ORDERED that, so long as the principal residence of Andy I Weiner is in either

Harris County, Texas or a county that is contiguous to Harris County, Texas, the

primary residence of the children shall be in Harris County, Texas or a county that

is contiguous to Harris County, Texas, and the parties shall not remove the

children from such designated area for the purpose of changing the primary

residence of the children until modified by further order of the court of continuing

jurisdiction or. by written agreement signed by the parties and filed with the court.

IT IS ORDERED that the following custodial accounts now held by the

parties for the parties' children are placed· under the sole and exclusive control of ... ~

':5 Katherine F. Weiner: "' 1. Fidelity UTMA Ace! Ending in #4270; and

Unless these documents have been previously executed, Andy I. Weiner is

Weiner- Agreed Final Decree of Divorce Page 9 •' •'

ORDERED to appear in the law offices of Randall B. Wilhite at 4265 San Felipe

Street, Suite 1400, Houston, Texas 77027, at 2:00p.m. on March 30, 2012, and to

execute, have acknowledged, and deliver to Katherine F. Weiner all documents

necessary to effectuate Katherine F. Weiner's sole and exclusive control of the

IT IS ORDERED that the following children's trusts are held in irrevocable

trusts, which shall continue as written, and that each party will take any and all

necessary steps to provide full co-trustee ownership and control of each such

account including the placing of such accounts in a deposit and withdrawal

agreement requiring both co-trustees to disburse funds; also known as an "and"

1. Fidelity Trust Acct Ending in #8634 (David);

The Court finds that the parties have entered into a Mediated Settlement Agreement providing for a non-expanded, non-standard possession order as more specifically herein provided.

IT IS ORDERED that each conservator shall comply with all terms and conditions of this Modified Possession Order. IT IS ORDERED that this Modified Possession Order is effective immediately and applies to all periods of possession occurring on and after the date the Court signs this

Weiner- Agreed Final Decree of Divorce · Page 10 Modified Possession Order. IT IS, THEREFORE, ORDERED:

1. In this Modified Possession Order "school" means the primary or secondary school in which the child is enrolled or, if the child is not enrolled in a primary or secondary school, the public school district in which the child primarily resides.

2. In this Modified Possession Order "child" includes each child, whether one or more, who is a subject of this suit while that child is under the age of eighteen years and not otherwise emancipated.

IT IS ORDERED that the conservators shall have possession of the child at times mutually agreed to in advance by the parties, and, in the absence· of mutual agreement, it is ORDERED that the conservators shall have possession of the child under the specified terms set out in this Modified Possession Order.

© Except as otherwise expressly provided in this Modified Possession Order, Andy I. Weiner shall have the right to possession of the child as follows:

On weekends, beginning at 6:00 p.m., on the first, third, and fifth Friday of each month and ending at 6:00 p.m. on the following Sunday, provided that upon 14 days' advance written notice of an out-of-town trip, Andy I. Weiner may pick up at 4 p.m. one time every 60 days.

2. Thursdays - On Thursday of each week during the regular school term, beginning at 4:00 p.m. and ending at 8:00 p.m.

3. Spring Vacation in Even-Numbered Years - In even-numbered years, beginning at 5:00p.m. on the day the child is dismissed from school for the school's spring vacation and ending at 5:00 p.m. on the day before school resumes after that vacation.

Weiner • Agreed Final Decree of Divorce Page 11 '

4. Extended Summer Possession by Andy I. Weiner -

With Written Notice by April 1 - On or before April 1•t of each year, Andy I. Weiner shall designate one period of 14 consecutive days (which may be exercised in 2 one week periods of possession, separated by no less than 14 days), beginning no earlier than the day after the child's school is dismissed for the summer vacation and ending no later than 7 days before school resumes for the next school year, during which he shall have his summer periods of possession with the children. These periods of possession shall begin and end at 6:00 p.m. on each applicable day.

Notwithstanding the Thursday periods of possession during the regular school term and the weekend periods of possession ORDERED for Andy I. Weiner, it is expressly ORDERED that Katherine F. Weiner shall have a superior right of possession of the child as follows:

1. Spring Vacation in Odd-Numbered Years - In odd-numbered years, beginning at 5:00 p.m. on the day the child is dismissed from school for the school's spring vacation and ending at 6:00 p.m. on the day before school resumes after that vacation.

2. Summer Weekend Possession by Katherine F. Weiner- On or before April 15th of each year, Katherine F. Weiner shall designate 14 consecutive days, or at her election, two 7 day periods beginning no earlier than the day" after the child's school is dismissed for the summer vacation and ending no later than 7 days before school resumes for the next school year, during which she will have her summer period(s) of possession with the children, provided the dates do not conflict with Father's Day weekend or the summer periods designated by Andy I. Weiner. These periods of possession shall begin and end at 6:00 p.m. on each applicable day.

Notwithstanding the weekend and Thursday periods of possession of Andy I. Weiner, Katherine F. Weiner and Andy I. Weiner shall have the right to possession of the child as follows:

Weiner- Agreed Final Decree of Divorce Page12 ¥ 1. Christmas Holidays in Even-Numbered Years - In even-numbered years, Andy I. Weiner shall have the right to possession of the child beginning at 6:00 p.m. on the day the child is dismissed from school for the Christmas school vacation and ending at noon on December 28, and Katherine F. Weiner shall have the right to possession of the child beginning at noon on December 28 and ending at 6:00 p.m. on the day before school resumes after that Christmas school vacation.

2. Christmas Holidays in Odd-Numbered Years - In odd-numbered years, Katherine F. Weiner shall have the right to possession of the child beginning at 6:00 p.m. on the day the child is dismissed from school for the Christmas school vacation and ending at noon on December 28, and Andy I. Weiner shall have the right to possession of the child beginning at noon on December 28 and ending at 6:00 p.m. on the day before school resumes after that Christmas school vacation.

3. Thanksgiving in Odd~Numbered Years In odd-numbered years, Andy I. Weiner shall have the right to possession of the child beginning at 6:00 p.m. on the day the child is dismissed from school for the Thanksgiving holiday and ending at 6:00p.m. on the Sunday following Thanksgiving.

4. Thanksgiving in Even-Numbered Years In even-numbered years, Katherine F. Weiner shall have the right to possession of the child beginning at 6:00 p.m. on the day the child is dismissed from school for the Thanksgiving holiday and ending at 6:00 p.m. on the Sunday following Thanksgiving.

5. Father's Day - Andy I. Weiner shall have the right to possession of the child each year, beginning at 6:00 p.m. on the Friday preceding Father's Day and ending at 6:00 p.m. on Father's Day, provided that if Andy I. Weiner is not oth~rwise entitled under this Modified Possession Order to present possession of the child, he shall pick up the child from Katherine F. Weiner's residence and return the child to that same place.

6. Mother's Day- Katherine F. Weiner shall have the right to

Weiner- Agreed Final Decree of Divorce Page 13 possession of the child each year, beginning at 6:00 p.m. on the Friday preceding Mother's Day and ending at 6:00 p.m. on Mother's Day, provided that if Katherine F. Weiner is not otherwise entitled under this Modified Possession Order to present possession of the child, she shall pick up the child from Andy I. Weiner's residence and return the child to that same place.

(e) Undesignated Periods of Possession

Katherine F. Weiner shall have the right of possession of the child at all other times not specifically designated in this Modified Possession Order for Andy I. Weiner.

Except as otherwise expressly provided in this Modified Possession Order, the terms and conditions of possession of the child are as follows:

1. Surrender of Child by Katherine F. Weiner- Katherine F. Weiner is ORDERED to surrender the child to Andy I. Weiner at the beginning of each period of Andy I. Weiner's possession at the residence of Katherine F. Weiner.

2. Return of Child by Andy I. Weiner - Andy I. Weiner is ORDERED to return the child to the residence of Katherine F. Weiner at the end of each period of possession.

3. Surrender of Child by Andy I. Weiner - Andy I. Weiner is ORDERED to surrender the child to Katherine F. Weiner, if the child is in Andy I. Weiner's possession or subject to Andy I. Weiner's control, at the beginning of each period of Katherine F. Weiner's exclusive periods of possession, at the place designated in this Modified Possession Order. 4. Return of Child by Katherine F. Weiner - Katherine F. Weineris ORDERED to return the child to Andy I. Weiner, if Andy I. Weiner is entitled to possession of the child, at the end of each of Katherine F. Weiner's exclusive periods of possession, at the place designated in this Modified Possession Order.

Weiner- Agreed Final Decree of Divorce ,.

5. Notwithstanding any other prov1s1on herein to the contrary, any child with a driver's license shall be permitted to drive himself.to and from each period of possession and during each period of possession; however, any child without a driver's license (which at this time includes Daniel Weiner and Michael Weiner) is ORDERED to ride only with Andy I. Weiner.

6. Personal Effects - Each conservator is ORDERED to return with the child the personal effects that the child brought at the beginning of the period of possession.

7. Designation of Competent Adult- Each conservator may designate any competent adult to pick up and return the child, as applicable. IT. IS ORDERED that a conservator or a designated competent adult be present when the child is picked up or returned.

8. Inability to Exercise Possession - Each conservator is ORDERED to give notice to the person in possession of the child on each occasion that the conservator will be unable to exercise that conservator's right of possession for any specified period.

9. Written Notice - Written notice shall be made to the other parent via e-mail correspondence to the other parent's e-mail address, including all notices from one parent to the other of any changes in a party's e-mail address. Each party is ORDERED to provide any change in the e-mail address designated by each such party as the one to be used for notification by the other party within 7 days of a change thereof.

In addition to the holiday periods of possession set forth in the

Modified Possession Order, Andy I. Weiner and Katherine F. Weiner shall

a. Rosh Hashanah Even-Numbered Years. In all

Weiner- Agreed Final Decree of Divorce f

even-numbered years Andy I. Weiner shall have possession of the children

for a period beginning at 5:00 p.m. on the night before the first day of Rosh

Hashanah and ending at 9:00p.m. on the same day; Katherine F. Weiner

shall have possession of the children from 10:00 a.m. until 8:00 p.m. on the

years Katherine F. Weiner shall have possession of the children for a period

beginning at 5:00 p.m. on the night before the first day of Rosh Hashanah

and ending at 9:00 p.m. on the same day; Andy I. Weiner shall have

possession of the children from 10:00 a.m. until 8:00 p.m. on the first day of

years, Katherine F. Weiner shall have possession of the children for a period

beginning at 5:00 p.m. on the night before the first day of Yom Kippur and

ending at 9:00 p.m. on the same day; Andy I. Weiner shall have possession

of the children from 10:00 a.m. until8:00 p.m. on the first day of Yom Kippur.

years, Andy I. Weiner shall have possession of the children for a period

beginning at 5:00 p.m. on the night before the first day of Yom Kippur and

ending at 9:00 p.m. on the same day; Katherine F. Weiner shall have

Weiner- Agreed Final Decree of Divorce Page 16 possession of the children from 10:00 a.m. until 8:00p.m. on the first day of

years, Andy I. Weiner shall have possession of the children for a period

beginning at 5:00 p.m. on the night before the first full day of Passover and

Katherine F. Weiner shall have possession of the children for a period

beginning at 5:00 p.m. on the night before the first full day of Passover and

The periods of possession ordered above apply to each child the

subject of this suit while that child is under the age of eighteen years and not

IT IS ORDERED that neither conservator shall take possession of the

children during the other conservator's period of possession unless there is

a prior written agreement signed by both conservators or in case of an

Weiner- Agreed Final Decree of Divorce Page 17 1

The provisions of this decree relating to conservatorship, possession,

or access terminate on the remarriage of Katherine F. Weiner to Andy I.

Weiner unless a nonparent or agency has been appointed conservator of

IT IS ORDERED that Andy I. Weiner is obligated to pay and shall pay to

Katherine F. Weiner child support of two thousand two hundred fifty dollars · IJ..prll ($2,250) per month, with the first payment being due and payable on MMeh 1, 2012, and a like payment being due and payable on the 1st day of each month

thereafter until the first month following the date of the earliest occurrence of one of

1.' any child reaches the age of eighteen years or graduates from high

school, whichever occurs later, subject to the provisions for support beyond the

4. the parent-child relationship is terminated based on genetic testing

that excludes the obligor as the child's genetic father;

5. the child enlists in the armed forces of the United States and begins

ii active service as defined by section 101 of title 10 ofthe United States Code; or ..0 a z '5 0 ~ Weiner- Agreed Final Decree of Divorce Page 18 Q "0 " ~ -~ u • •

6. any child's disabilities are otherwise removed for general purposes.

Thereafter, Andy I. Weiner is ORDERED to pay to Katherine F. Weiner child

support of one thousand eight hundred seventy-five dollars ($1 ,875) per month,

due and payable on the 1st day of the first month immediately following the date of

the earliest occurrence of one of the events specified above for another child and a

like sum of one thousand eight hundred seventy-five dollars ($1 ,875) due and

payable on the 1st day of each month thereafter until the next occurrence of one of

Thereafter, Andy I. Weiner is ORDERED to pay to Katherine F. Weiner child

support of one thousand five hundred dollars ($1 ,500) per month, due and payable

on the 1st day of the first month immediately following the date of the earliest

occurrence ofone of the events specified above for another child and a like sum of

one thousand five hundred dollars ($1 ,500) due and payable on the 1st day of ·

each month thereafter until the next occurrence of one of the events specified

If the child is eighteen years of age and has not graduated from high school,

IT IS ORDERED that Andy I. Weiner's obligation to pay child support to Katherine

F. Weiner shall not terminate but shall continue for as long as the child is enrolled-

1. under chapter 25 of the Texas Education Code in an accredited

ki secondary school in a program leading toward a high school diploma or under

I§ s g 0 Weiner -Agreed Final Decree of Divorce Page 19 .,Q ""u'""'5 section 130.008 of the Education Code in courses for joint high school and junior

college credit and is complying with the minimum attendance requirements of

2. on a full-time basis in a private secondary school in a program leading

toward a high school diploma and is complying with the minimum attendance

IT IS ORDERED that any employer of Andy I. Weiner shall be ordered to

withhold from earnings for child support from the disposable earnings of Andy I.

Weiner for the support of David A. Weiner, Daniel S. Weiner and Michael H.

IT IS FURTHER ORDERED that all amounts withheld from the disposable

earnings of Andy I. Weiner by the employer and paid in accordance with the order

to that employer shall constitute a credit against the child support obligation.

Payment of the full amount of child support ordered paid by this decree through the

means of withholding from earnings shall discharge the child support obligation.

If the amount withheld from earnings and credited against the child support

obligation is less than 100 percent of the amount ordered to be paid by this decree,

the balance due remains an obligation of Andy I. Weiner, and it is hereby

ORDERED that Andy I. Weiner pay the balance due directly .to the state

Weiner -Agreed Final Decree of Divorce Page 20 disbursement unit specified below.

On this date the Court authorized the issuance of an Order/Notice to

IT IS ORDERED that all payments shall be made through the state

disbursement unit at Texas Child Support Disbursement Unit, P.O. Box 659791,

San Antonio, Texas 78265-9791, and thereafter promptly remitted to Katherine F.

Weiner for the support of the children. IT IS ORDERED that each party shall pay,

when due, all fees charged to that party by the state disbursement unit and any

IT IS FURTHER ORDERED that Andy I. Weiner shall notify this Court and

Katherine F. Weiner by U.S. certified mail, return receipt requested, of any change

of address and of any termination of employment. This notice shall be given no

later than seven days after the change of address or the termination of

employment. This notice or a subsequent notice shall also provide the current

address of Andy I. Weiner and the name and address of his current employer,

IT IS ORDERED that, on the request of a prosecuting attorney, the title IV-D

Weiner -Agreed Final Decree of Divorce Page 21 agency, the friend of the Court, a domestic relations office, Katherine F. Weiner,

Andy I. Weiner, or an attorney representing Katherine F. Weiner or Andy I. Weiner,

the clerk of this Court shall cause a certified copy of the Order/Notice to Withhold

The Court finds that good cause exists that no order to withhold from

earnings for child support should be delivered to any employer of Andy I. Weiner

as long as no delinquency or other violation of this child support order occurs and

as long as the Office of the Attorney General Child Support Division .is not

providing services to Katherine F. Weiner. For the purpose of this provision, a

delinquency has occurred if Andy I. Weiner has been in arrears for an amount due

for more than thirty days or the amount of the arrearages equals or is greater than

the amount due for a one-month period. If a delinquency or other violation occurs

or if the Office of the Attorney General Child Support Division begins providing

services to Katherine F. Weiner, the clerk shall deliver the order to withhold

earnings as provided above. ~

.... "' o ACCORDINGLY, IT IS ORDERED that, as long as no delinquency or other i::J £" violation of this child support order occurs and as long as the Office of the Attorney ' "' E;"' 00 General Child Support Division is not providing services to Katherine F. Weiner, all ~

"'ii payments shall be made through the state disbursement unit and thereafter "" ~ ~ s 50 (:\ Weiner -Agreed Final Decree of Divorce Page 22 1l "'u" '€ promptly remitted to Katherine F. Weiner for the support of the children. If a

delinquency or other violation occurs or if the Office of the Attorney General Child

Support Division begins providing services to Katherine F. Weiner, all payments

shall be made in accordance with the order to withhold earnings as provided

IT IS ORDERED that Andy I. Weiner shall pay, as child support, through

graduation from high school, each child's tuition, required fees, required books,

lunches at school and other fees associated with the children's attendance at the

Kinkaid School, as billed directly by the school to Andy I. Weiner.

1. IT IS ORDERED that Katherine F. Weiner and Andy I. Weiner shall

each provide medical support for each child as set out in this order as additional

child support for as long as the Court may order Katherine F. Weiner and Andy I.

Weiner to provide support for the child under sections 154.001 and 154.002 of the

Texas Family Code. Beginning on the day Katherine F. Weiner and Andy I.

Weiner's actual or potential obligation to support a child under sections 154.001

and 154.002 of the Family Code terminates, IT IS ORDERED that Katherine F.

Weiner and Andy I. Weiner are discharged from the obligations set forth in this

~ medical support order with respect to that child, except for any failure by a parent .D a z 1l ~0 c:\ Weiner -Agreed Final Decree of Divorce Page 23 1l <;: ""5 u •'

· 2. Definitions -

"Health Insurance" means insurance coverage that provides basic

health-care services, including usual physician services, office visits,

hospitalization, and laboratory, X-ray, and emergency services, that may be

provided through a health maintenance organization or other private or public

organization, other than medical assistance under chapter 32 of the Texas Human

"Reasonable cost" means the total cost of health insurance coverage for all

children for which Andy I. Weiner is responsible under a medical support order that

does not exceed 9 percent of Andy I. Weiner 's annual resources, as described by

"Reasonable and necessary health-care expenses not paid by insurance

and incurred by or on behalf of a child" include, without limitation, any copayments

for office visits or prescription drugs, the yearly deductible, if any, and medical,

surgical, prescription drug, mental health-care services, dental, eye care,

ophthalmological, and orthodontic charges. These reasonable and necessary

health-care expenses do not include expenses for travel to and from the

Weiner ·Agreed Final Decree of Divorce Page 24 ''

a. to hand deliver the document by a person eighteen years of age

or older either to the recipient or to a person who is eighteen

b. to deliver the document to the recipient by certified mail, return

receipt requested, to the recipient's last known mailing or

c. to deliver the document to the recipient at the recipient's last

known mailing or residence address using any person or entity

whose principal business is that of a courier or deliverer of

papers or documents either within or outside the United States.

3. Findings on Health Insurance Availability- Having considered the

cost, accessibility, and quality of health insurance coverage available to the

Health insurance is available or is in effect for the children through Andy I.

Weiner's employment or membership in a union, trade association, or other

IT IS FURTHER FOUND that the following orders regarding health-care

Weiner- Agreed Final Decree of Divorce Page 25 .\

As additional child support, through four (4) months past high school

graduation for each child and for so long as child support is payable for a child,

Andy I. Weiner is ORDERED to provide health insurance for each such child with a

deductible of no more than $1 ,000.00 per year, per child, and if it is higher, as child

support, Andy I. Weiner is ORDERED to pay 100% of all deductible amounts to a

point where such deductible amount reaches that level. For example, if the

deductible for the children is $7,500, Andy I. Weiner shall pay 100% of the fist

Beginning on the first day of the first month following the rendition of the

divorce, and pursuant to section 154.183© of the Texas Family Code, IT IS

ORDERED that the reasonable and necessary uninsured medical expenses of the

a. Andy I. Weiner shall be responsible for payment of 70% of each

b. after the deductible has been met, Katherine F. Weiner shall pay for

30% and Andy I. Weiner shall pay for 70% of all uninsured health care expenses ~

'"'t> for each child's health care not covered by the children's health insurance policy. "'N ~ c. Notwithstanding the foregoing, any uninsured health care expenses "'' "'~"' not applied toward the deductible shall be paid 30% by Katherine F. Weiner and 00

Weiner- Agreed Final Decree of Divorce .. ''

d. Unless approved in advance by both parents, any party incurring out

of network expenses, except in the case of a medical emergency, shall pay 100%

Andy I. Weiner is ORDERED to continue to maintain health insurance for

each child who is the subject of this suit that covers basic health-care services,

including usual physician services, office visits, hospitalization, and laboratory,

Andy I. Weiner is ORDERED to maintain such health insurance in full force

and effect on each child who is the subject of this suit as long as child support is

payable for that child. Andy I. Weiner is ORDERED to convert any group

insurance to individual coverage or obtain other health insurance for each child

within fifteen days of termination of his employment or other disqualification from

the group insurance. Andy I. Weiner is ORDERED to exercise any conversion

options or acquisition of new health insurance in such a manner that the resulting

insurance equals or exceeds that in effect immediately before the change.

Andy I. Weiner is ORDERED to furnish Katherine F. Weiner a true and ~

" «; correct copy of the health insurance policy or certification and a schedule of fi £" benefits within 10 days of the signing of this order. Andy I. Weiner is ORDERED ' s;"' "' to furnish Katherine F. Weiner the insurance cards and any other forms necessary "' ~

"'ki for use of the insurance within 10 days of the signing of this order. Andy I. Weiner "8 z il ~0 Weiner -Agreed Final Decree of Divorce Page 27 0 '"0

" <;1 "iu •

is ORDERED to provide, within three days of receipt by him, to Katherine F:

Weiner any insurance checks, other payments, or explanations of benefits relating

to any medical expenses for the children that Katherine F. Weiner paid or incurred.

Pursuant to section 1504.051 of the Texas Insurance Code, IT IS

ORDERED that if Andy I. Weiner is eligible for dependent health coverage but fails

to apply to obtain coverage for the children, the insurer shall enroll the children on

application of Katherine F. Weiner or others as authorized by law.

The party who incurs a health-care expense on behalf of a child is

ORDERED to submit to the other party all forms, receipts, bills, statements, and

explanations of benefits reflecting the uninsured portion of the health-care

expenses within thirty days after he or she receives them. The nonincurring party

is ORDERED to pay his or her percentage of the uninsured portion of the

health-care expenses either by paying the health-care provider directly or by

reimbursing the incurring party for any advance payment exceeding the incurring

party's percentage of the uninsured portion of the health-care expenses within

thirty days after the nonincurring party receives the forms, receipts, bills,

These provisions apply to all unreimbursed health-care expenses of any

child who is the subject of this suit that are incurred while child support is payable

ii ..0 for that child . ~ il ~0 q Weiner- Agreed Final Decree of Divorce Page 28 '"d

"''1"1 u 5. Secondary Coverage- IT IS ORDERED that if a party provides

secondary health insurance coverage for the children, both parties shall cooperate

fully with regard to the handling and filing of claims with the insurance carrier

providing the coverage in order to maximize the benefits available to the children

and to ensure that the party who pays for health-care expenses for the children is

reimbursed for the payment from both carriers to the fullest extent possible.

6. Compliance with Insurance Company Requirements - Each party is

ORDERED to conform to all requirements imposed by the terms and conditions of

the policy of health insurance covering the children in order to assure maximum

reimbursement or direct payment by the insurance company of the incurred

health-care expense, including but not limited to requirements for advance notice

to any carrier, second opinions, and the like. Each party is ORDERED to attempt

to use "preferred providers," or services within the health maintenance

organization, if applicable; however, this provision shall not apply if emergency

care is required. Disallowance of the bill by a health insurer shall not excuse the

obligation of either party to make payment; however, if a bill is disallowed or the

benefit reduced because of the failure of a party to follow insurance procedures or

requirements, IT IS ORDERED that the party failing to follow the insurance

procedures or requirements shall be wholly responsible for the increased portion

Weiner - Agreed Final Decree of Divorce Page 29 of that bill.

IT IS FURTHER ORDERED that no surgical procedure, other than in an

emergency or one covered by insurance, shall be performed on the child unless

the parent consenting to surgery has first consulted with at least two medical

doctors, both of whom state an opinion that the surgery is medically necessary. IT

IS FURTHER ORDERED that a parent who falls to obtain the required medical

opinions before consent to surgery on the child shall be wholly responsible for all

medical and hospital expenses incurred in connection therewith and not covered

7. Claims- Except as provided in this paragraph, the party who is not

· carrying the health insurance policy covering the children is ORDERED to furnish

to the party carrying the policy, within thirty days of receiving them, any and all

forms, receipts, bills, and statements reflecting the health-care expenses the party

not carrying the policy incurs. on behalf of the children. In accordance with section

1204.251 and 1504.055(a) of the Texas Insurance Code, IT IS ORDERED that the

party who is not carrying the health insurance policy covering the children, at that

party's option , may file any claims for health-care expenses directly with the

insurance carrier with and from whom coverage is provided for the benefit of the

children and receive payments directly from the insurance company. Further, for

the sole purpose of section 1204.251 of the Texas Insurance Code, Katherine F.

Weiner - Agreed Final Decree of Divorce Page 30 Weiner is designated the managing conservator or possessory conservator of the

The party who is carrying the health insurance policy covering the children is

ORDERED to submit all forms required by the insurance company for payment or

reimbursement of health-care expenses incurred by either party on behalf of a

child to the insurance carrier within fifteen days of that party's receiving any form,

8. Constructive Trust for Payments Received- IT IS ORDERED that any

insurance payments received by a party from the health insurance carrier as

·reimbursement for health-care expenses incurred by or on behalf of a child shall

belong to the party who paid those expenses. IT IS FURTHER ORDERED that

the party receiving the insurance payments is designated a constructive trustee to

receive any insurance checks or payments for health-care expenses paid by the

other party, and the party carrying the policy shall endorse and forward the checks

or payments, along with any explanation of benefits received, to the other party

9. WARNING - A PARENT ORDERED TO PROVIDE HEALTH

Weiner- Agreed Final Decree of Divorce Page 31 ..

WITHOUT REGARD TO WHETHER THE EXPENSES WOULD HAVE BEEN

OF HEALTH INSURANCE PREMIUMS OR CONTRIBUTIONS, IF ANY, PAID ON

IT IS ORDERED that the provisions for child support in this decree shall be

an obligation of the estate of Andy I. Weiner and shall not terminate on the death of

Andy I. Weiner. Payments received for the benefit of the children, including

payments from the Social Security Administration, Department of Veterans Affairs

or other governmental agency or life insurance proceeds, annuity payments, trust

distributions, or retirement survivor benefits, shall be a credit against this

obligation. Any remaining balance of the child support is an obligation of Andy I.

Termination of Orders on Remarriage of Parties but Not on Death of Obligee

The provisions of this decree relating to current child support terminate on ~

" ~ the remarriage of Katherine F. Weiner to Andy I. Weiner unless a nonparent or "' "'~ agency has been appointed conservator of the children under chapter 153 of the '

David A. Weiner, DanielS. Weiner and Michael H. Weiner.

The information required for each party by section 105.006(a) of the Texas

Name: Katherine F. Weiner Social Security number: xxx-xx-x324 Driver's license number: xxxxx616 Issuing state: Texas Current residence address: 8719 Stablecrest, Houston, TX 77024 Mailing address: 8719 Stablecrest, Houston, TX 77024 Home telephone number: 832-725-4340 Name of employer: N/A

Weiner • Agreed Final Decree of Divorce Page 33 Address of employment: N/A Work telephone number: N/A

Name: Andy I. Weiner Social Security number: xxx-xx-x888 Qriver's license number xxxxx486 Issuing state: Texas Current residence address: 1200 Post Oak Blvd., Apt. 907, Houston, TX 77056 Mailing address: 1200 Post Oak Blvd., Apt. 907, Houston, TX 77056 Home telephone number: 832 816 4666 Name of employer: Weiner Development Address of employment: 520 North Post Oak Blvd., Houston, Texas Work telephone number: (713) 623-0188

EACH PERSON WHO IS A PARTY TO THIS ORDER IS ORDERED TO NOTIFY

ANY CHANGE IN THE PARTY'S CURRENT RESIDENCE ADDRESS, MAILING

OF EMPLOYMENT, DRIVER'S LICENSE NUMBER, AND WORK TELEPHONE

Weiner -Agreed Final Decree of Divorce Page 34 I •• ..!....

DATE THAT THE PARTY KNOWS OF THE CHANGE.

THE DUTY TO FURNISH THIS INFORMATION TO EACH OTHER PARTY, THE

PERSON, BY VIRTUE OF THIS ORDER, IS UNDER AN OBLIGATION TO PAY

FAILURE BY A PARTY TO OBEY THE ORDER OF THIS COURT TO PROVIDE

EACH OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY WITH

LITIGATION TO ENFORCE THE ORDER, INCLUDING CONTEMPT OF COURT.

FOR UP TO SIX MONTHS, A FINE OF UP TO $500 FOR EACH VIOLATION,

Notice shall be given to the other party by delivering a copy of the notice to the

party by e-mail correspondence to the party's e-mail address. Notice shall be given

to the Court by delivering a copy of the notice either in person to the clerk of this

Court or by registered or certified mail addressed to the clerk at 1115 Congress,

Houston, Texas 77002. Notice shall be given to the state case registry by mailing a

copy of the notice to State Case Registry, Contract Services Section, MC046S,

Weiner -Agreed Final Decree of Divorce Page 35 •

USE REASONABLE EFFORTS TO ENFORCE THE TERMS OF CHILD

ON THE TERMS OF A COURT ORDER AND THE OFFICER'S AGENCY ARE

ENTITLED TO THE APPLICABLE IMMUNITY AGAINST ANY CLAIM, CIVIL OR

PERFORMED IN THE SCOPE OF THE OFFICER'S DUTIES IN ENFORCING

THAT IS INVALID OR NO LONGER IN EFFECT COMMITS AN OFFENSE THAT

CONFINEMENT IN JAIL FOR UP TO SIX MONTHS, A FINE OF UP TO $500 FOR

Weiner- Agreed Final Decree of Divorce Page 36 ,_, '"· l

IN THE PARTY'S NOT RECEIVING CREDIT FOR MAKING THE PAYMENT.

IT IS ORDERED AND DECREED that Katherine F. Weiner's name is

IT IS ORDERED AND DECREED that costs of court are to be borne by the

IT IS ORDERED AND DECREED that Petitioner and Respondent are ,_ ~

"-< 0 ,.__ discharged from all further liabilities and obligations imposed by the temporary '~

~ 11<· order of this Court rendered on August 24, 2011, except as otherwise stated herein ' on a, ,.__ 00 with regard to provisions for sale of the home. ~ 00 ~ on t Discharge from Discovery Retention Requirement s z§ ~ 0 A Weiner- Agreed Final Decree of Divorce Page 37 ;; ~ "€ u" ...

IT IS ORDERED AND DECREED that the parties and their respective

attorneys are discharged from the requirement of keeping and storing the

documents produced in this case in accordance with rule 191.4(d) of the Texas

Petitioner, Katherine F. Weiner, and Respondent, Andy I. Weiner, each

acknowledge that before signing this Final Decree of Divorce they have read this

· Final Decree of Divorce fully and completely, have had the opportunity to ask any

questions regarding the same, and fully understand that the contents of this Final

Decree of Divorce constitute a full and complete resolution of this case. Petitioner

and Respondent acknowledge that they have voluntarily affixed their signatures to

this Final Decree of Divorce, believing this agreement to be a just and right division

of the marital debt and assets, and state that they have not signed by virtue of any

coercion, any duress, or any agreement other than those specifically set forth in

Each party represents and warrants that he or she has not incurred any

outstanding debt, obligation, or other liability on which the other party is or may be

liable, other than those described in this decree. Each party agrees and IT IS

ORDERED that if any claim, action, or proceeding is hereafter initiated seeking to

Weiner -Agreed Final Decree of Divorce Page 38 hold the party not assuming a debt, an obligation, a liability, an act, or an omission

of the other party liable for such debt, obligation, liability, act or omission of the

other party, that other party will, at his or her sole expense, defend the party not

assuming the debt, obligation, liability, act, or omission of the other party against

any such claim or demand, whether or not well founded, and will indemnify the

party not assuming the debt, obligation, liability, act, or omission of the other party

and hold him or her harmless from all damages resulting from the claim or

Damages, as used in this provision, includes any reasonable loss, cost, expense,

penalty, and other damage, including without limitation attorney's fees and other

costs and expenses reasonably and necessarily incurred in enforcing this

IT IS ORDERED that the indemnifying party will reimburse the indemnified

party, on demand, for any payment made by the indemnified party at any time after

the entry of the divorce decree to satisfy any judgment of any court of competent

jurisdiction or in accordance with a bona fide compromise or settlement of claims,

demands, or actions for any damages to which this indemnity relates.

The parties agree and IT IS ORDERED that each party will give the other

party prompt written notice of any litigation threatened or instituted against either

party that might constitute the basis of a claim for indemnity under this decree.

Weiner- Agreed Final Decree of Divorce Page 39 ·'t ....

Clarifying Orders

Without affecting the finality of this Final Decree of Divorce, this Court

expressly reserves the right to make orders necessary to clarify and enforce this

IT IS ORDERED AND DECREED that all relief requested in this case and

not expressly granted is denied. This is a final judgment, for which let execution

and all writs and processes necessary to enforce this judgment issue. This

judgment finally disposes of all claims and all parties and is appealable.

Date of Judgm:J L L _, SIGNED on -fZl-?1f ~f:.Z----(7~ 1

- ) JIL!D lrh\f~Mk . MAR 2. 9 2012 Time: ,2,.\Lf~Ptr\ Han13 County, roxas ~ ALS' Deputy

~ 't 4-< 0 ..,. 0

~ "-< .,.,' "" co t- ~

co .,., ~

~ .0

~ 5 ~ Weiner -Agreed Final Decree of Divorce Page 40 8 1l "" ·~

u . ........,..._

FULLENWEIDER WILHITE 4265 San Felipe Street Suite 1400 Houston, Texas 77027 Tel: (713) 624-4100 Fax: (713) 624-4141 1

By•Ra~~ Attorney for Katherine F. Weiner State Bar No. 21476400

JENKINS KAMIN, LLP Two Greenway Plaza, Suite 600 Houston, Texas 77046 713-600-5500 Telephone 713-600- Telefa

By: _ _;~~'Z;.~~--- Joan . Jenkm~­ Attorney for Andy I. Weiner State Bar Number 10621900

Weiner -Agreed Final Decree of Divorce Page 41 I, Chris Daniel, District Clerk of Hanis County, Texas cettify that this is a true and conect copy of the miginal record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this April4, 2012

Certified Document Number: 51817895 Total Pages: 41

Chris Daniel, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com Exhibit C

No. _ _ _ _ _ __

INRE: § INTHEPROBATECOURT § § NO. _ _ _ _ __ I>AVID ABRAHAM WEINER § 1994 TRUST § ~SCOUNT~TEXAS

AFFIDAVITOFKATHERINEF. WARREN

Before me, the undersigned notary, on this ·day personally appeared KATHERINE F.

WARREN, the affiant, whose identity is known to me. After I administered an oath, affiant

iestified as follows:·

1. My name is Katherine F. Warren. I am over eighteen years of age, of ~ound mind, and

capable of making this affidavit. The facts stated in this affidavit are within my personal

2. On December 13, 1994, Andy I. Weiner and I created the DAVID ABRAHAM WEJNER

1994 TRUST (the "Trust") for the benefit of our son, David W. Warren, formerly known

as David A. Weiner. Andy I. Weiner and I are the trustors and co-trustees of the Ttust.

3. The purpose of the Trust is to provide for the best interests of our son, David. A primary

purpose of the Trust is to fund his educational costs. I believe that it is in David's best

. interest to receive a quality education.

4. David is enrolled as a freshman at Rice University in Houston, Texas. He began

5. Andy I. Weiner and I were granted a divorce on March 29, 2012. As part of the divorce

decree, the trust was to continue as provided under the trust agreement. Under the trust

agreement, Andy I. Weiner and I are required to act jointly as co-trustees.

1 6. Although David is the primary beneficiary of the Trust, he applied for fmancial aid with

Rice University prior to the start of the Fall 2013 semester. David was denied fmancial

aid because of the Trust. The financial aid department of Rice University explained that

where students are the beneficiaries of trusts like the DAVID ABRAHAM WEINER

1994 TRUST, that the school assumes that the trust funds are intended for the payment of

7. David received a tuition bill from Rice University in July 2013. I wrote a check from the

Trust's Fidelity account for $20,000 or around August 1, 2013. The check was returned

to Rice University unpaid because Andy I. Weiner requested that Fidelity not honor the

8. After the check was returned to Rice University unpaid, David received a letter from the

university advising him that his tuition payment was overdue. I requested that Fidelity

wire $20,000 to David, with which he paid his tuition. It took approximately six weeks

for the tuition payment to be credited to David's account with Rice University.

9. I believe that it is detrimental to the best interests of David for Andy I. Weiner and I to

continue acting as co-trustees of the Trust. Our disagreements regarding distributions of

David's behalf could seriously inhibit his ability to receive a wonderful educatio!J .

. 10. David is an intelligent adult and is capable of using the Trust assets for his best interests.

I believe that David has shown maturity beyond most otber college students his age. It

would be in his best interests to be given the Tlust assets for his college tuition, rather

than to face the uncetiaintyinherent in the current situation.

' 2 Sworn to and subscribed before me by Katherine F. Warren on q ·3 () _ _ 2013.

ANGIE K BYRNES My Commission Expires Seplembor 16. 2015

3 HARRIS COUNTY PROBATE COQRT NUMBER FOUR FAX (713) 368-7111 PI-lONE (713) 368-6767 FAX TRANSMISSION

To: Sarah Patel Pacheco Via facsimile 713-658-1921

To: Carol Cantrell Via facsimile 713-333-0550

Re: In Re: Michael Henry Weiner 2000 Trust; Cause No. 425578; In Probate Court No. 4; Harris County, Texas In Re: Daniel Stephen Weiner 1996 Trust; Cause No. 425576; In Probate Court No. 4; Harris County, Texas

Date: 11-21-13

Pages: 5

Note: See attached signed Orders.

TAB I NO. 425,578

INRE: § IN PROBATE COURT § MICHAEL HENRY WETNER § NUMBER FOUR (4) OF § :2000 TRUST § HARRIS COUNTY, TEXAS

ORDER ON PLEA TO THE .JURISDICTION

On this day, the Court considered the Plea to the Jurisdiction, filed by Defenda11t Andy

Weiner, co-trustee ofthc Michac.l Henry Weiner 2000 Trust, and after considering the pleadings,

evidence ~nd arguments of counse.l, the Court fi.nds that the Plea to the Jurisdiction should be

GRANTED in its entirety. It is thereJllre,

ORDERED that the Plea to the Jurisdiction is GRANTED in its entirety. It is fu.rther,

ORDERED that, due to jurisdictional defects, this ca~e is dismissed.

Signed this --~<-=-1_day of _}')olfCmb<.1=-_,, 2013.

~~--"'"' JUDGE PRESIDING

077)44/flOIIOO I 376- 9S<19Wiv1 APPROVED AS TO FORM:

CRAIN, CATON & .TAMES, P.C.

By: -=-sA~R-:-A--:-.H-:-1' ATEL PACT-IECO (TBA #00788164) KATHLEEN TANNER BEDU7.E (TBA #24052205) 1401 McKinney, Suite 1700 Houston, Texas 77010 (713) 658-2323 Facsimile (713) 658-1921

2 017)44/000001 376 • 9;4996vl NO. 425,576

IN RE: § TN PROBATE COURT § DANIEL STEPHEN WEINER § NUMBER FOUR ( 4) OF § 1996 TRUST § HARRIS COUNTY, TEXAS

ORDER ON PLEA TO THE .JURlSOICTION

On this day, the Court considered the Plea to the .lmisdietion, filed by Def

Weiner, co-tmstee of the Dm1icl Stephen Weiner 1996 Trust, and alter considering the pleadings,

· evidence and arguments of counsel, the Court tinds that the Plea to the Jnrisdiction should be

GRANTED in it' entirety. Jt is thereJ:ore,

ORDERED that the Plea to the Jurisdiction is GRANTED in its entirety. His further,

ORDERED that, due to jurisdictional defects, this case is di.smissed.

Signed this ____d.L_ day of _A}~--' 2013.

077344/0IJIJOO I :176 · 95499(wl APPROVED AS TO FORM:

CRAJN, CATON & .TAMES, P.C.

Ry: __,____________. SARAH PATEL PACHECO (TBA #00788164) KATHLEEN TANNER BEDUZR (TBA #24052205) 1401 McKinney, St1ite 1700 Houston, Texas 77010 (713) 658-2323 Facsimile (713) 658-1921

2 077311•11000001 376 · 9S499(wl FILED 8/7/2014 7:07:36 AM Stan Stanart County Clerk Harris County

IN RE: § IN THE PROBATE COURT § DAVID ABRAHAM WEINER § 1994 TRUST § § NO. 4 and § § DANIEL W. WARREN, § PETITIONER-INTERVENOR § HARRIS COUNTY, TEXAS

PETITIONERS’ NOTICE OF NONSUIT AGAINST KATHERINE WARREN

David W. Warren and Daniel W. Warren, Petitioners, hereby give written notice to this Court and to all parties to this suit that they are taking a nonsuit of their entire case against Katherine Warren, Respondent, in Petitioner’s Second Amended Original Petition filed March 13, 2014 and Petitioner’s Original Petition in Intervention filed April 22, 2014, effective immediately on the filing of this notice on August 7, 2014.

By: /s/ Carol A. Cantrell

Carol A. Cantrell, Attorney for Petitioners State Bar No.: 24043592 Meredith N. McIver State Bar No.: 24078974 Cantrell & Cantrell, PLLC 3700 Buffalo Speedway, Suite 520 Houston, Texas 77098 Telephone: (713) 333-0555 Facsimile: (713) 333-0550 ccantrell@cctaxlaw.com

TAB J CERTIFICATE OF SERVICE

I do hereby certify that a true and correct copy of the foregoing instrument has been

duly served by electronic delivery or facsimile on all parties and counsel of record indicated

below, on August 7, 2014.

Sarah Patel Pacheco Kathleen Tanner Beduze Crain Caton & James Five Houston Center, 1401 McKinney, 17th Floor Houston, TX 77010 spacheco@craincaton.com 713-658-1921 (facsimile) ATTORNEY FOR RESPONDENT ANDY I. WEINER

Thomas R. Conner Conner & Lindamood, P.C. 1221 Lamar, Suite 1010 Houston, TX 77010 tom@lawcl.com 713-654-8115 (facsimile) ATTORNEY FOR RESPONDENT KATHERINE R. WARREN

/s/ Carol Cantrell CAROL A. CANTRELL No. -125,577

IN R.E: § IN T il E PROBATE COU RT § OAVIO ABRAHAM WEINER § 1994 TRUST § § NO. -1 and § § DAN IEL W. WARREN, § PETITIONER-INTERVENOR § HARRIS COUNTY, T EXAS

RELEASE w flfhl I, David W. Warren and Daniel$. Warren, release and discharge Katherine R. Warren. both individually and as Trustee, from any and all claims. demands. lawsuits. actions. and liabilities or responsibilities of whatsoever kind or nature, that would otherwise be imposed on the trustee and which may arise out of or in connection with the trusteeship of the David Abraham Weiner 1994 Trust and the Daniel Steven Weiner 1996 Trust, including liability for any past violations. I have read and understand the facts and causes of action set forth in the pleadings styled In Re: David Abraham Weiner 1994 Trust and intend this release as a full and complete release in conformity with the provisions of Texas Property Code Section 114.005. I further understand that by signing this release, I voluntarily surrender certain legal rights.

Date

Daniel W. Warren Date

Agreed 10 and accepted:

KW00510 FILED 4/22/2014 6:38:02 PM Stan Stanart PROBATE COURT 4 County Clerk Harris County

IN RE: § IN THE PROBATE COURT § DAVID ABRAHAM WEINER § NO. 4 § 1994 TRUST § HARRIS COUNTY, TEXAS

ORIGINAL PETITION IN INTERVENTION

Intervenor Daniel Steven Weiner (Daniel) respectfully files this Petition in Intervention. By

this filing, Daniel appears in this case as a plaintiff seeking removal of Andy I. Weiner as

Trustee of the Daniel Steven Weiner 1996 Trust and also seeking damages for breach of

fiduciary duty.

1. Intervenor Daniel S. Weiner is an individual and beneficiary of the Daniel Steven

Weiner 1996 Trust (Daniel’s Trust). Daniel Weiner resides in Harris County, Texas at 1226

Muirfield, Houston, TX 77055. The last three digits of intervenor’s driver’s license number

are 996. The last three digits of Intervenor’s Social Security number are 039.

2. Plaintiff, David W. Warren, is an individual and beneficiary of the David Abraham

Weiner 1994 Trust (David’s Trust). David resides in Harris County, Texas at 1226 Muirfield,

Houston, TX 77055. Plaintiff’s attorney Carol A. Cantrell, already has a copy of this petition

because she also represents Intervenor, Daniel S. Weiner.

3. Respondent, Andy I. Weiner, an individual, has appeared and answered. A copy of this

petition will be forwarded to Sarah Patel-Pacheco, attorney of record for Respondent Weiner,

at 1400 McKinney, 17th Floor, Houston, TX 77010.

1 TAB K 4. Respondent Katherine R. Warren, an individual, has appeared and answered. A copy

of this petition will be forwarded to Thomas R. Conner, attorney of record for Respondent

Warren, Conner & Lindamood, P.C., 1221 Lamar, Suite 1010, Houston, TX 77010.

5. Venue of this proceeding is proper in this Court pursuant to Texas Trust Code §

115.002(b).

THE ORIGINAL LAWSUIT

6. Plaintiff David W. Warren filed an Original Petition for Termination of Trust on

September 30, 2013 seeking to terminate the David Abraham Weiner 1994 Trust.

Respondents Andy I. Weiner and Katherine R. Warren were joined as necessary parties

under Texas Property Code § 115.011 because they are trustees of the trust.

7. On October 23, 2013, Respondent Weiner filed an answer to plaintiff’s original petition

asserting a general denial as well as affirmative defenses of res judicata, collateral estoppel,

the doctrine of unclean hands, and the terms of the trust.

8. On November 1, 2013, plaintiff David Warren filed a First Amended Original Petition

for Modification of Trust and sought to remove both trustees and appoint himself as trustee

rather than to terminate the trust.

9. On January 15, 2014 Respondent Warren filed an answer to plaintiff’s First Amended

Original Petition for Modification of Trust and asserted a general denial.

10. On March 13, 2014 David W. Warren filed his Second Amended Original Petition

seeking to remove only Andy I. Weiner as trustee and obtain damages against Andy I.

Weiner for breach of fiduciary duty by failing to prudently invest David’s Trust funds and

borrowing substantially all of David’s Trust’s funds, which is expressly prohibited by the Texas Trust Code § 113.052 and the terms of the trust instrument.

INTERVENOR’S INTEREST IN LAWSUIT

11. Daniel S. Weiner has a justiciable interest in this lawsuit because he will be harmed if

the Court finds that Andy I. Weiner did nothing wrong by borrowing substantially all of the

funds from David’s Trust on April 9, 2009 for his own personal use and benefit while he was

trustee. Andy I. Weiner also borrowed substantially all of the funds from Daniel’s Trust on

the same day in the same transaction for Respondent Weiner’s his own personal use and

benefit without interest or collateral while he was trustee of Daniel’s Trust. The trust

instruments of both David’s Trust and Daniel’s Trust expressly prohibit borrowing by the

12. Daniel S. Weiner will also be harmed in this lawsuit if the Court finds that Andy I.

Weiner did nothing wrong by maintaining the assets of David’s Trust in cash for 3.5 years

while the Dow Jones Industrial Average, the S&P 500 Index, and the NASDAQ advanced by

72 to 203 percent during that time period. Andy I. Weiner also maintained the assets of

Daniel’s Trust in cash during that same time period.

13. Daniel S. Weiner will also be harmed in this lawsuit if the Court finds that Andy I.

Weiner did nothing wrong by investing more than half of David’s Trust portfolio in Weiners

Stores, Inc. when the company had a history of bankruptcy and was ultimately sold for a

complete loss. Andy I. Weiner also invested over 65 percent of Daniel’s Trust portfolio in

Weiner Stores, Inc. during the same time period and sold the stock for a complete loss.

14. Daniel S. Weiner will also be harmed in this lawsuit if the Court finds that Andy I.

Weiner did nothing wrong by failing to diversify David’s Trust portfolio and consequently

selling the stocks for a significant loss. Andy I Weiner also failed to diversify Daniel’s Trust

3 Daniel’s Trust by investing in the same stocks (Autozone Inc., Kohls Corp, Lowes

Companies, Whole Foods Market, and 99 Cents Only Stores) as David’s Trust and selling

them at the same time for a loss of $30,586.

15. Because Daniel Weiner challenges the very same transactions that David Warren is

already challenging, his claims arise from the same transactions or occurrences and involve

common questions of law and fact with David’s claims – namely, whether the actions of

Andy I. Weiner in failing to prudently invest the trust assets and borrowing nearly all of the

trust corpus for Respondent Weiner’s own benefit constitute breaches of fiduciary duty. The

outcome of David W. Warren’s case will substantially affect the interest of Daniel S. Weiner

because they complain of the same transactions by the same trustee during the same time

period pertaining to identical trusts with identical assets.

16. A party has a justiciable interest in a lawsuit when its interests will be affected by the

litigation. {In re Union Carbide Corp., 273 S.W.3d 152, 155 (Tex. 2008); Law Offices of

Windle Turley, P.C. v. Ghiasinejad, 109 S.W.3d 68, 70 (Tex. App.—Fort Worth 2003, no

pet.).} A party may intervene in a suit if it could have brought all or part of the same suit in

its own name. {In re Union Carbide, 273 S.W.3d at 155; Guar. Fed. Sav. Bank v. Horseshoe

Operating Co., 793 S.W.2d 652, 657 (Tex. 1990); E & B Carpet Mills v. State, 776 S.W.2d

286, 290 (Tex. App.—Austin 1989, writ dism’d).}

17. Intervenor Daniel S. Weiner is the beneficiary of the Daniel Steven Weiner 1996

Trust (Daniel’s Trust), an irrevocable inter vivos trust created by Respondents (trustors)

Warren and Weiner on March 20, 1996. A true and correct copy of the trust agreement is

attached hereto as “Exhibit A” and is incorporated for all purposes. 18. Respondents Andy I. Weiner and Katherine R. Weiner, are Trustees of the Trust.

Respondent Weiner’s sister Bayle Weiner Drubel is successor trustee in the event that both

Respondents Weiner and Warren cease to serve.

19. Daniel S. Weiner was born on March 18, 1996 and is an adult.

20. The primary purpose of Daniel’s Trust is to pay for Daniel’s education. He is presently

a senior student at Kinkaid High School in Houston, Texas. He has accepted enrollment at

Rice University in Houston, Texas to attend classes in the fall of 2014.

21. Daniel’s Trust owns marketable securities worth approximately $124,983 as of January

31, 2014. The Trust assets came from various sources including Daniel’s own income tax

refunds, birthday and Hanukkah gifts, and checks payable to the Custodian of his Uniform

Gifts to Minors Account. Respondent Weiner “endorsed” these checks over to Daniel’s Trust

without Daniel’s knowledge.

22. The Trustee is authorized to make discretionary distributions to the beneficiary as are

in the beneficiary's best interest. The beneficiary may withdraw the entire Trust corpus upon

reaching age 21.

23. On March 25, 2009, Respondent Andy I. Weiner liquidated the entire portfolio of

Daniel’s Trust and incurred a capital loss of $30,586.

24. On April 9, 2009 Respondent Weiner borrowed $90,959.38 from Daniel’s Trust,

leaving $1,000 in the trust. On the same day Respondent Weiner borrowed $126,641.40 from

David’s Trust and $82,474.40 from his other son Michael Weiner’s trust, leaving only

$1,000 in each of those trusts. In all, Respondent borrowed $300,075.18 from his sons’ trusts

for his own personal use and benefit while he was trustee.

5 25. On December 19, 2013, Daniel S. Weiner demanded an accounting of his trust under

Texas Trust Code § 113.151-152. Respondent Weiner has ignored his demand.

26. In 1999, Daniel’s Trust purchased 34,000 shares of Wieners Stores, Inc. stock, in

addition to the 18,000 shares it already owned. On August 31, 1999, Weiners Stores, Inc.

accounted for over 65 percent of Daniel’s Trust’s portfolio.

27. Respondent Weiner was an Executive Vice President of Weiner Stores, Inc. until 1995

when it declared Chapter 11 bankruptcy. Weiners Stores emerged from bankruptcy on

August 26, 1997 and filed for Chapter 11 bankruptcy again on October 16, 2000.

28. On December 6, 2001, Daniel’s Trust sold 52,000 shares of Wieners Stores, Inc. for

2/10ths of a cent per share for a total loss of $28,762.44.

29. From July 1, 1999 to March 25, 2009 Daniel’s Trust invested in only five to eight

individual stocks in a portfolio worth less than $90,000.

30. From March 26, 2009 to September 11, 2012 Daniel’s Trust’s account at Fidelity

consisted entirely of cash. During this time the trust earned $99.13 of interest income, while

the Dow Jones Industrial Average increased by 72 percent, the S&P 500 Index increased by

79 percent, and the NASDAQ Composite increased by over 203 percent.

31. Daniel S. Weiner did not discover Respondent Weiner’s borrowing or failure to

prudently invest his Trust funds until discovery began in David Warren’s case. Daniel

Weiner was a minor when the borrowings and other breaches occurred. The period of

limitations does not begin to run against a person entitled to bring an action for breach of

fiduciary duty while the person is under 18 years of age. {Tex. Civ. Prac. & Rem. Code §§

16.001, 16.004.} Daniel S. Weiner became 18 on March 18, 2014 and is thus within the

limitations period for bringing this action. CAUSES OF ACTION

32. Daniel S. Weiner incorporates by reference each and every allegation contained in the

preceding paragraphs as if fully set forth herein.

33. There is a real and justiciable controversy between Daniel S. Weiner and Respondent

Andy I. Weiner concerning Respondent Weiner’s actions as trustee of Daniel’s Trust.

34. Respondent Weiner has materially breached his fiduciary duties in the following

manner:

a. By borrowing substantially all of the assets of Daniel’s Trust for his own

personal use and benefit on April 9, 2009 without interest or collateral in violation of

Paragraph E-3(a) of the Trust Agreement and the Texas Trust Code § 113.052, both of

which expressly forbid borrowing by the trustee;

b. By commingling substantially all of Daniel’s Trust assets with Respondent

Weiner's own personal funds in violation of the duty of loyalty under Texas Trust Code §

117.007, the duty not to profit by self-dealing with the trust under Texas Trust Code §

114.0001(a), and the common law duty to segregate trust assets;

c. By investing over 65 percent of Daniel’s Trust assets in Weiner Stores, Inc. in

1999, resulting in a material loss to the trust in violation of the prudent investor rule under

Texas Trust Code § 117.004;

d. By failing to properly diversify Daniel’s Trust property resulting in a material

loss to the trust in violation of the duty to diversify under Texas Trust Code § 117.005;

e. By failing to prudently invest Daniel’s Trust property resulting in a material

loss to the trust in violation of the prudent investor rule under Texas Trust Code § 117.004;

7 f. By failing to render an accounting despite written demand by Daniel S.

Weiner on December 19, 2013 in violation of the duty to account under Texas Trust Code

§§ 113.151 and 113.152.

Daniel and his trust have suffered substantial economic damages as a direct result of

Respondent Weiner’s material breaches of fiduciary duty enumerated above.

35. Daniel Weiner further claims that Respondent Weiner’s sister, Bayle Weiner Drubel,

should not be named as successor trustee in the event Respondents are unable to serve

because she has a material conflict of interest with respect to this Trust due to her

relationship with Respondent Weiner. As a result of her conflict, Ms. Drubel would not be

capable of properly performing her fiduciary duties. {Kappus v. Kappus, 284 S.W.3d 831

(Tex. 2009)}.

WHEREFORE, Daniel S. Weiner requests:

36. Judgment against Respondent Andy I. Weiner for a sum within the jurisdictional limits

of the Court.

37. Monetary relief of over $200,000 but not more than $1,000,000.

38. Removal of Respondent Weiner as Trustee of the Daniel Steven Weiner 1996 Trust

pursuant to Texas Trust Code §§ 114.008(a)(7) and 113.082;

39. That Respondent Weiner be ordered to pay money or restore property to Daniel’s Trust

equal to the trust’s lost profits caused by Respondent Weiner's borrowing, imprudent

investing, and other breaches of fiduciary duty pursuant to Texas Trust Code §

114.008(a)(3); 40. That Respondent Weiner be ordered to disgorge and pay to Daniel’s Trust any profit

he has made through his personal use of Daniel’s Trust funds under Texas Trust Code §

114.0001(a).

41. That Respondent Weiner be ordered to pay Daniel’s Trust punitive damages in excess

of the statutory cap due to Respondent Weiner's gross negligence and intentional and

conscious indifference to the rights of the beneficiaries under Texas Civ. Prac. & Rem. Code

§ 41.008.

42. That Daniel S. Weiner be awarded reasonable and necessary attorney fees, costs, and

expenses through trial and all appeals under applicable Texas law, including but not limited

to Texas Civ. Prac. & Rem. Code § 38.001 and Texas Trust Code §§ 114.064 and

113.151(a).

43. That Respondent Weiner be ordered to submit an accounting that meets the

requirements of Texas Trust Code § 113.152 and personally bear the cost of the accounting

pursuant to Texas Trust Code § 113.151.

44. That Daniel’s Trust be modified pursuant to Texas Trust Code § 112.054(a)(3) to

appoint Daniel Weiner as co-Trustee with Respondent Katherine Warren and remove Bayle

Weiner Drubel as the successor trustee in the event that Ms. Warren ceases to serve.

45. That Daniel S. Weiner and his trust be awarded prejudgment and postjudgment interest

as provided by law.

WHEREFORE PREMISES CONSIDERED, Daniel S. Weiner prays that the Court grant the

requested relief and such further relief to which Daniel S. Weiner and his trust are justly

entitled.

By:_/s/ Carol A. Cantrell Carol A. Cantrell, Attorney for Daniel S. Weiner Texas Bar No.: 24043592 Meredith N. McIver Texas Bar No.: 24078974 3700 Buffalo Speedway, Suite 520 Houston, TX 77098 Phone: 713-333-0555 Fax: 713-333-0550

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument has been duly served by electronic service to counsel of record indicated below on this 22st day of April 2014.

Sarah Patel Pacheco Kathleen Tanner Beduze Crain Caton & James Five Houston Center, 1401 McKinney, 17th Floor Houston, TX 77010 spacheco@craincaton.com 713-658-1921 (facsimile) ATTORNEY FOR RESPONDENT ANDY I. WEINER

Thomas R. Conner Conner & Lindamood, P.C. 1221 Lamar, Suite 1010 Houston, TX 77010 tom@lawcl.com 713-654-8115 (facsimile) ATTORNEY FOR RESPONDENT KATHERINE R. WARREN

By:_/s/ Carol A. Cantrell DANIEL STEVEN WEINER 1996 TRUST

By this trust agreement, Andy I . Weiner and Katherine Friedman Weiner, husband and wife, both of Harris County, Texas, as "trusters," establish the Daniel steven Weiner 1996 Trust for the benefit of their son, Daniel steven Weiner ("Daniel"), born March 11, 1996. Trusters grant, assign and deliver to Andy I. Weiner and Katherine Friedman Weiner, both of Harris County, Texas, as "trustees," the property described in Attachment A. Attachment A, which is captioned "Initial Contributions to the Daniel Steven Weiner 1996 Trust," is incorporated by reference as a part of this trust agreement. This trust agreement and the trusts established by it are irrevocable. No person shall have the right to revoke or amend this trust agreement or any of its provisions. However, property acceptable to the trustee may be added to any trust from time to time in the future by trusters or by any other person (including additions pursuant to the provisions of the last will of any person).

All references to "trustee" shall refer to the person or persons then acting as such. A. PRIMARY TRUST

A-1. Distributions . The income of the trust may be accumulated and retained, in whole or in part, or the trustee may distribute to Daniel, from time to time, so much or all of the trust estate as, in the trustee's discretion, is in Daniel's best interests.

A-2. Termination. Daniel may withdraw any part or all of the trust estate within 60 days after he becomes age 21, and may thereby terminate the trust as to the part withdrawn. Exercise of this withdrawal right shall be by one or more written instruments delivered to the trustee within the 60-day period. If or to the extent that Daniel does not exercise this withdrawal right, the trust shall continue until Daniel becomes age 30 or dies before that age, at which time the trust estate shall be distributed:

(b) If Daniel is not then living, to such one or more persons, corporations or organizations (including Daniel's estate) , as Daniel appoints by a will which specifically refers to this power of appointment. If or to the extent that Daniel does not effectively exercise this power of appointment, the trust estate shall be distributed:

(1) To Daniel's descendants. (2) If none of Daniel's descendants is then living, to trustors' descendants.

EXHIBIT A ( 3} If none of trusters' descendants is then living, to trusters' heirs. A-3. Payment of Taxes. If Daniel's will contains no contrary directions, the trustee shall pay from the trust estate the entire increment in taxes payable by reason of Daniel's death (including any interest or penalties thereon} to the extent (if any} that the total of such taxes is greater than would have been imposed if no portion of the trust estate were taken into account in determining such taxes.

B. CONTINGENT TRUSTS B-1. Trusts Established. Any portion of a trust estate upon the trusts termination (other than a portion withdrawn by Daniel pursuant to Paragraph A-2} which would be distributable to a beneficiary who is under age 30 or to a beneficiary who is under a legal disability instead shall be distributed to the trustee of a Contingent Trust (unless otherwise directed by the valid exercise of a power of appointment} . Each beneficiary's portion so distributed shall be held and administered as the initial trust estate of a separate trust for the beneficiary. However, if a Contingent Trust is already in existence for that beneficiary, any additional portion to be distributed to the trustee of a Contingent Trust for the beneficiary shall be added to the trust estate of the existing contingent Trust. B-2. Distributions. The income of each Contingent Trust may be accumulated and retained, in whole or in part, or the trustee may distribute to the beneficiary for whom the trust was established, from time to time, so much or all of the trust estate as, in the trustee's discretion, is in the beneficiary's best interests.

B-3. Termination. Each Contingent Trust shall terminate when the beneficiary for whom the trust was established has become age 30 and is under no legal disability or upon the beneficiary's earlier death. Upon termination, the trust estate shall be distributed:

(b) If the beneficiary is not then living, to such one or more persons, corporations or organizations as the beneficiary appoints by a will which specifically refers to this power of appointment. If none of the beneficiary's descendants is then living, this power may not be exercised in favor of the benefici ary, the beneficiary's estate, the beneficiary's creditors or the creditors of the beneficiary's estate. If or to the extent that the beneficiary does not effectively exercise this power of appointment, the trust estate shall be distributed:

-2- EXHIBIT A (2) If none of the beneficiary's descendants is then living, to the descendants of the beneficiary's nearest ancestor who was one of trustors• descendants and who has descendants then living.

(3) If none of these persons is then living, to trusters, descendants. ( 4) If none of trustors • descendants is then living, to trustors• heirs.

C. DISTRIBUTIONS c-1. Distributions to or for Beneficiaries. During the term of a trust, any distribution to be made to a beneficiary from the trust may be made (i) to the beneficiary, {ii) if the beneficiary is under a legal disability or if the trustee determines that the beneficiary is unable to properly manage his affairs, to a person furnishing support, maintenance or education for the beneficiary or with whom the beneficiary is residing, for expenditure on the beneficiary's behalf, or (iii) to a custodian for a minor beneficiary, as selected by the trustee, under the Uniform Gifts to Minors Act of any state. Alternatively, the trustee may otherwise apply all or a part of the distribution for the beneficiary • s benefit. However, no such distribution shall be made to a trustor, to any spouse of a trustor, or in any manner that discharges a legal obligation {including an obligation of support) of a trustor or any spouse of a trustor. Any distribution under this paragraph shall be a full discharge of the trustee with respect thereto.

c-2. Best Interests of Beneficiary. In making distributions in the "best interests" of a beneficiary, the trustee may consider the age of the beneficiary, the costs of the beneficiary's support, maintenance, education and comfort without regard to any other resources available to the beneficiary for these purposes, the effect of any distribution upon the income and transfer tax liability of the beneficiary or of the trust, and any other factors deemed relevant by the trustee.

0-1. Successor Trustee, Co-Trustee. The following provisions shall apply to each separate trust established under this trust agreement:

(a) Successor Trustee. Should Andy I. Weiner or Katherine Friedman Weiner cease to act as trustee, for any reason, the one remaining shall continue to act as trustee. Should both Andy I. Weiner and Katherine Friedman Weiner cease to act as trustees, for any reason, trustors appoint Bayle Weiner Drubel as successor trustee.

-3- EXHIBIT A (b) Appointment of Successor Trustee by Trustee . At any time after qualifying as trustee, any trustee may appoint a successor trustee to act in his place, either immediately or in the future upon any stated contingency, and may thereby supplement the provisions of subparagraph (a). (c) Appointment of Successor Trustee by Beneficiaries. If at any time there is no trustee acting and none has been appointed, a majority of the beneficiaries (acting through the beneficiary's natural or legal guardian or legal representative, in the case of a beneficiary under a legal disability) who might then be entitled to receive a distribution from the trust estate shall appoint a successor trustee. (d) Appointment of Co-Trustee. The trustee (acting unanimously if more than one) may appoint one or more co-trustees. (e) Who May Be Appointed. A successor trustee or co-trustee may be any individual, bank or trust company and may be domiciled anywhere. (f) Procedure for Appointment. Appointment shall be made by written instrument filed with the trust records. Any such appointment may be changed or revoked prior to the date it becomes effective. Any such appointment may be limited in any manner deemed advisable by the person making the appointment, including, for example, restricting the power over distributions as necessary to avoid the imposition of any tax upon the trust, the appointee or the appointee's estate. D-2. Resignation of Trustee. A trustee may resign from a trust without the necessity of any court proceeding upon meeting these conditions: (a) Notice. At least 30 days' written notice (if not waived) shall be given to each beneficiary who might then be entitled to receive a distribution from the trust estate. If a beneficiary is under a legal disability, notice shall be given to (or waived by) the beneficiary's natural or legal guardian. (b) Accounting. If and to the extent required by the successor trustee, an accounting for the administration of the trust shall be given to the successor trustee. The successor trustee shall be fully protected in relying upon such accounting. D-3. Rights and Liabilities.

(a) Bond Not Required. No bond or other security shall be required of any trustee.

-4- EXHIBIT A favor of the validity of any act by or omission of any trustee. A trustee shall not be liable for any act or omission except in the case of gross negligence, bad faith or fraud. Specifically, in assessing the propriety of any investment of a trust estate, the overall performance of the entire trust estate shall be taken into account.

(c) Compensation. Each trustee shall be entitled to receive reasonable compensation for services actually rendered to a trust.

E. ADMINISTRATION

E-1. General Powers of Trustee. To carry out the trust purposes but subject to any limitations stated elsewhere herein, the trustee of each trust shall have the following powers, which may be exercised free from court supervision, and which shall exist until all of the trust estate has been distributed:

(a) Trust Estate. The trustee may invest and reinvest all or any part of the trust estate in property of any description and may retain as a part of the trust estate any property acquired at any time and in any manner. Specifically, and without regard to the provisions of any applicable state law, the trustee may retain, or invest and reinvest in, property unproductive of income, shares of open or closed end investment trusts or companies, wasting assets, and any other property, regardless of location and without regard to any requirement of diversification as to kind or amount.

(b) Business Interests. The trustee may continue operation of any business entity, in any business form, with all or any part of the trust estate, and may reorganize or liquidate any such entity at any time.

(c) Transfers, Loans. The trustee may lease, sell, transfer, or encumber in any manner (including with purchase money mortgages) all or any part of the trust estate, and may loan or borrow money in any manner (including by joint and several obligations) with or without security. Subject to the provisions of Paragraph E-3(a), the trustee may purchase assets from the estate of a trustor and may loan funds to the estate of a trustor at such rate of interest and with such security as the trustee determines to be in the best interests of the current beneficiaries of the trust.

(d) Dealings With Related Parties. The trustee may deal with any person or entity regardless of any relationship or identity of any trustee to or with that person or entity and may hold or invest all or any part of the trust estate in common or undivided interests with that person or entity.

(e) Agents, Employees. The trustee may employ and compensate agents and other employees ~nd may delegate to them any and all discretions and powers.

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EXHIBIT A (f) Partitions, Distributions. The trustee may partition all or any part of any interest, may pay and receive such moneys or properties as may be necessary to equalize differences, and in so doing (i) may make any distribution of all or any part of the trust estate in any manner (including composing shares differently) and (ii) may evaluate any property, which valuation shall be binding on all beneficiaries. (g) Claims, Controversies. The trustee may maintain and defend any claim or controversy by or against the trust without the joinder or consent of any beneficiary. (h) Additional Powers. In addition, the trustee shall have all rights, privileges and powers now or hereafter granted to trustees in Texas, including those granted under the Texas Trust Code. Any subsequent legislation or regulation expanding or limiting the rights, privileges and powers granted a trustee shall apply to all trusts hereunder unless the trustee elects not to have such legislation or regulation apply to a particular trust by a written instrument filed with the trust records. However, the provisions made for the various beneficiaries under this trust agreement are exclusive. Any statute that purports to enlarge the class of beneficiaries to whom distributions may be made or the purposes for which distributions may be made shall not apply to any trust. All trust powers may be exercised upon such terms as the trustee deems advisable and may affect trust properties for any length of time regardless of the duration of the trust. Generally, and subject only to the terms of this trust agreement, the trustee shall hold, manage, control, use, invest, reinvest, and dispose of the trust estate to the same extent as if the trustee were the fee simple owner thereof. E-2. Principal and Income Determinations. The receipts, disbursements and reserves of each trust may be allocated, on a cash or accrual basis, between principal and income in the trustee's discretion without regard to the provisions of any statute. To the extent the trustee does not exercise this discretionary power, the provisions of the Texas Trust Code shall control. E-3. Restrictions on the Exercise of Certain Powers. (a) Dealings with Trust Estate. No power granted the trustee shall be construed to enable any person to purchase, exchange, or otherwise deal with or dispose of any trust estate for less than an adequate consideration in money or money's worth or to authorize loans to any person without adequate interest. No part of any trust estate may be (i) loaned to a trustor or to any spouse of a trustor or (ii) applied to the payment of premiums on policies of insurance on the life of a trustor or on the life of any spouse of a trustor.

-6- EXHIBIT A (b) Distributions to or for Trustee. Any power to make discretionary distributions to or for the benefit of a person who is serving as trustee of a trust (including distributions to the person's spouse and distributions in discharge of any legal obligation of the person) shall be exercisable solely by the trustee or trustees other than that person. If no other trustee is then serving, such power shall not be exercisable.

E-4. Release and Delegations of Powers. Any power granted to a trustee may be released, in whole or in part, temporarily or permanently. Except as provided in Paragraph E-3, any such power may be delegated, in whole or in part, temporarily or permanently, to any other trustee then acting. A release or delegation shall be by written instrument filed with the records of each trust to which the release or delegation applies. F. DEFINITIONS AND GENERAL PROVISIONS F-1. Trust Estate. "Trust estate" means all assets, however and whenever acquired (including income and accumulated income), which may belong to a trust at any given time.

F-2. Descendants. "Descendants" means the legitimate children of the person or persons designated and the legitimate lineal descendants of such children, and includes any person adopted before becoming age 18 and the adopted person's descendants. A posthumous child shall be considered as living at the death of his parent. Whenever a distribution is to be made to the descendants of any person, the property to be distributed shall be divided into as many equal shares as there are living children of the person and deceased children of the person who left descendants who are then living. Each living child shall take one share and the share of each deceased child shall be divided among his then living descendants in the same manner. "Trusters' descendants" includes only those persons descended from both trustors. F-3. Heirs. Any distribution to be made to the "heirs" of a person shall be made to the individuals who would have inherited the person's personal property if the person had died intestate at the time the distribution is to be made, domiciled in Texas and not married, under the laws of Texas in force on the effective date of this trust agreement, with the shares of taking determined by those laws. However, both trusters and any spouse of a trustor shall be deemed to have died prior to the time that any such distribution is to be made. A distribution to "trustors' heirs" shall be made to the heirs of Andy I. Weiner. F-4. Internal Revenue Code. "Internal Revenue Code" means the Internal Revenue Code of 1986, as amended, or corresponding provisions of any subsequent federal tax laws.

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EXHIBIT A F-5. Other Terms. The use of any gender includes the other genders, and the use of either the singular or the plural includes the other. F-6. Spendthrift Provision. No beneficiary shall have the power to anticipate, encumber, or transfer his interest in any trust estate in any manner. No part of any trust estate shall be liable for or charged with any debts, contracts, liabilities or torts of a beneficiary or subject to seizure or other process by any creditor of a beneficiary. Nothing in this paragraph shall be construed to limit the otherwise valid exercise of a power of appointment or right of withdrawal given by this trust agreement.

F-7. Texas Law Applies. The situs of the trusts established under this trust agreement is Texas. Wherever possible, the laws of Texas shall apply to the construction, administration and validity of each trust. F-8. Maximum Term of Trusts. No trust shall continue for a period longer than 21 years after the death of the last to die of trusters and all of trusters' descendants who are living on the effective date of this trust agreement. Any trust still in force at the end of such period shall terminate, and the trust estate shall be distributed to the beneficiary for whom the trust was established. F-9. Powers of Appointment Exercisable by Beneficiaries. In exercising a power of appointment given to a beneficiary by this trust agreement, the beneficiary may appoint the property subject to the power outright to the appointee, in trust, or to a custodian for the appointee under the Uniform Gifts to Minors Act of any state. If the beneficiary appoints to a custodian, he may select the custodian. If the beneficiary appoints in trust, he may select the trustee or trustees, may establish such administrative terms for the trust as he deems appropriate, and may impose lawful spendthrift restrictions. He may give the trustee discretionary powers over the income and principal, and may create a trust that has several permissible distributees. He may create life interests or other limited interests in some appointees with future interests in favor of other appointees, may appoint different types of interests among the appointees, and may create new powers of appointment in a trustee or trustees or in any appointee. He may impose lawful conditions on an appointment and,, in general, may appoint to or among the appointees in any lawful manner. In determining whether, in what manner and to what extent a testamentary power of appointment has been exercised by a beneficiary, the trustee may act in reliance upon a court order admitting an instrument to probate as the beneficiary's last will or an order finding that the beneficiary died intestate. Unless within six months after the beneficiary's death the trustee has actual notice of the existence of proceedings to probate a will of the beneficiary, the trustee shall assume that the beneficiary died -8- intestate. The foregoing provisions are intended to expedite the prompt and efficient administration of the trust and to protect the trustee from any action taken or distribution made in accordance with these provisions. Nothing in this paragraph shall limit or qualify any power of appointment given by this trust agreement or any right which an appointee or taker in default of appointment may have against any person receiving a distribution from the trustee irrespective of the place of probate or of the time of discovery of a will exercising the power or any other action taken in the beneficiary's estate.

By signing this trust agreement, the trustee (i) accepts these trusts and all of the rights, powers and duties attached to the office of trustee as provided herein, (ii) agrees to serve as trustee of the Daniel Steven Weiner 1996 Trust and of any Contingent Trusts which may be established under this trust agreement, (iii) acknowledges receipt of the property described in Attachment A, and (iv) agrees to hold and administer each trust estate in accordance with the terms of this trust agreement. This trust agreement is executed effective as of the 20th day of March, 1996.

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EXHIBIT A ATTACHMENT A: INITIAL CONTRIBUTIONS TO THE DANIEL STEVEN WEINER 1996 TRUST

Katherine Friedman Weiner, Trustor and Trustee 3559:painsc\0157136

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EXHIBIT A FILED 12/1/2014 12:00:00 AM Stan Stanart County Clerk

DM PROBATE COURT 4 Harris County

No. 425,576-401

IN RE: § IN THE PROBATE COURT § DANIEL STEVEN WEINER § NO. 4 § 1996 TRUST § HARRIS COUNTY, TEXAS

1 PER IN ORIGINAL PETITION 12-1-2014

NOW COMES Daniel W. Warren (Daniel), Petitioner and Beneficiary of the Daniel Steven

Weiner 1996 Trust, and files this Original Petition pursuant to the Court’s Order (attached

“Exhibit A”) granting his Motion to Sever his causes of action from Cause No. 425,577, In Re

David Abraham Weiner 1996 Trust. Petitioner seeks removal of Andy I. Weiner as Trustee of

the Daniel Steven Weiner 1996 Trust and damages for breach of fiduciary duty.

1. Daniel W. Warren, Petitioner, is an individual and Beneficiary of the Daniel Steven

Weiner 1996 Trust (Daniel’s Trust). Daniel W. Warren resides in Harris County, Texas at

1226 Muirfield, Houston, TX 77055. The last three digits of his driver’s license number are

996. The last three digits of his Social Security number are 039.

2. Andy I. Weiner, Respondent, is an individual acting as trustee of Daniel’s Trust. He

appeared and answered as Respondent in Cause No. 425,577, from which this case was

severed. Mr. Weiner currently resides at 111 Post Oak Blvd., Apartment 452, Houston,

Texas 77056. He can be served through his attorney of record, Sarah Patel-Pacheco, Crain

Caton & James, 1401 McKinney, 17th Floor, Houston, Texas 77010.

3. Katherine R. Warren, is an individual acting as trustee of Daniel’s Trust. She appeared and

answered as a Respondent and Cross-Defendant in Cause No. 425,577 from which this case

was severed. Petitioner released her of all liability in connection with her trusteeship EXHIBIT exhibitsticker.com

TAB L pursuant to Texas Property Code § 114.005 and on August 7, 2014, filed a Notice of Nonsuit

against Ms. Warren in Cause No. 425,577, which applies to this case in the same manner as

if it had been filed under this Cause No. 425,576-401.

DISCOVERY CONTROL PLAN

4. This case is subject to the discovery control plan and deadlines set out in the Agreed

Docket Control Order dated August 27, 2014 relating to Cause No. 425,577.

5. Venue of this proceeding is proper in this Court pursuant to Texas Property Code §

6. Daniel W. Warren is the sole beneficiary of the Daniel Steven Weiner 1996 Trust

(Daniel’s Trust), an irrevocable inter vivos trust created by Respondent Andy Weiner and

Katherine Warren on March 20, 1996. A true and correct copy of the Trust Agreement is

attached hereto as “Exhibit B” and is incorporated for all purposes. Although neither party

has a signed copy of Daniel’s Trust Agreement, the parties have admitted the authenticity of

the unsigned copy in pleadings and discovery.

7. Andy I. Weiner and Katherine R. Warren, are Trustors (settlors) and Trustees of

Daniel’s Trust. Either trustee may serve alone if one of them should cease to act as trustee.

[Paragraph D-1 of Daniel’s Trust Agreement].

8. The Trust Agreement grants the trustee discretion to make distributions for Daniel’s

best interest, considering his age, the income and transfer tax effects, the cost of his support,

maintenance, education, and comfort without regard to any other resources available to him

2 for these purposes, and any other factors the trustee deems relevant. [Paragraphs A-1 and C-2

of Daniel’s Trust Agreement].

9. However, no distributions can be made “to a trustor, to any spouse of a trustor, or in

any manner that discharges a legal obligation (including an obligation of support) of a trustor

or any spouse of a trustor. Any distribution under this paragraph shall be a full discharge of

the trustee with respect thereto.” [Paragraph C-1 of the Trust Agreement].

10. Daniel’s Trust currently owns marketable securities worth approximately $108,043 as

of September 30, 2014. The Trust assets came from a variety of sources, but primarily from

Daniel’s grandparents who wrote checks payable to “Andy Weiner, Custodian for Daniel

Weiner,” which Andy Weiner endorsed and deposited into Daniel’s Trust.

11. Daniel’s Trust Agreement provides that Daniel may withdraw the entire Trust corpus

within 60 days after he becomes 21. To the extent Daniel does not exercise this withdrawal

right, the Trust continues until Daniel becomes 30, or dies, whichever is earlier.

12. The Trust Agreement prohibits loans without adequate interest. It also prohibits loans to

a trustor as follows: “No power granted the trustee shall be construed to enable any person to

purchase, exchange, or otherwise deal with or dispose of any trust estate for less than an

adequate consideration in money or money’s worth or to authorize loans to any person

without adequate interest. No part of any trust estate may be (i) loaned to a trustor or to any

spouse of a trustor….” [Paragraph E-3(a) of the Trust Agreement]. Andy Weiner admits that

he read Paragraph E-3(a) before he borrowed the money. But he decided that “It was better

to borrow money from this trust than go into bankruptcy.” [Deposition of Andy Weiner, Jan.

16, 2014, page 33, lines 13-16].

13. The Trust Agreement waives the trustee’s common law duty to diversify the Trust

3 investments by permitting the trustee to invest in “property of any description,” including

“property unproductive of income, 1 shares of open or closed end investment trusts or

companies, wasting assets, 2 and any other property, regardless of location and without regard

to any requirement of diversification as to kind or amount.” [Paragraph E-1(a) of Daniel’s

Trust Agreement].

14. However, the Trust Agreement does not waive the trustee’s duty to exercise judgment

or the duty not to speculate with Trust assets under Texas Property Code § 113.056, which

applied prior to January 1, 2004, as follows:

Unless the terms of the trust instrument provide otherwise, in acquiring, investing,

reinvesting, exchanging, retaining, selling, supervising, and managing trust

property… a trustee shall exercise the judgment and care under the circumstances

then prevailing that persons of ordinary prudence, discretion, and intelligence in

the management of their own affairs, not in regard to speculation but in regard

to the permanent disposition of their funds, considering the probable income from

as well as the probable increase in value and safety of their capital.

15. Nor does the Trust Agreement waive the trustee’s duty to prudently invest the Trust

assets and make them productive. Texas Property Code § 117.004(a) provides that: “A

trustee shall invest and manage trust assets as a prudent investor would, by considering the

purposes, terms, distribution requirements, and other circumstances of the trust.” Langford

v. Shamburger, 417 S.W.2d 438, 444-445, n.r.e. (It is a breach of fiduciary duty to

unreasonably delay the investment of trust funds).

1 “Property unproductive of income” is property that has with little or no income, but is expected to appreciate, such as raw land or growth oriented (low-yield) stocks. [Rest. 3rd, Trusts (Prudent Investor Rule § 227, cmts.] 2 “Wasting assets” are those that are overproductive of income, such as an oil well or coal deposit that depletes itself through use over time. [Rest. 3rd, Trusts (Prudent Investor Rule § 227, cmts.]

4 16. The Trust Agreement relieves the trustee of liability “for any act or omission except in

the case of gross negligence, bad faith or fraud. Specifically in assessing the propriety of any

investment of a trust estate, the overall performance of the entire trust estate shall be taken

into account.” [Paragraph D-3(b) of the Trust Agreement] This Paragraph does not excuse

Andy Weiner for intentionally breaching his fiduciary duty. Nor could it, because Texas

Property Code § 114.007(a) renders any term of a trust relieving a trustee of liability for an

intentional breach of trust as unenforceable.

17. Andy Weiner began purchasing Weiners Stores Inc. stock for the Trust in 1999, shortly

after it began trading on the OTC Bulletin Board in August 1998. OTC stocks do not meet

the listing requirements of the national exchanges like NYSE, AMEX, and NASDAQ

because they tend to be too small, closely held, thinly traded and risky.

18. Weiners Stores Inc. had just emerged from Chapter 11 bankruptcy in August 1997, had

only 518 shareholders, and was trading at 12.5 cents to $1.50 a share in 1998 and 1999. 3 Its

Annual Report filed with the SEC in April 1999 reported that its sales were sliding and it had

not paid a dividend or had an operating profit in the last five years. Id.

19. Andy Weiner was aware that Weiners Stores Inc. was a risky investment. He was an

executive officer of Weiners Stores Inc. for five to eight years before it filed for bankruptcy

in 1995. [Andy Weiner Deposition, Jan. 16, 2014, p. 14, lines 1-17] Andy Weiner has a BA

from Stanford and a Masters in Business from the University of Texas and is a retail

shopping center developer. [Id. at p. 13, lines 16-25].

20. Andy Weiner made several purchases of Weiner Stores Inc. stock for the Trust in May,

3 Weiners Stores Inc. Annual Report - [X] Reg. S-K Item 405 - Form 10-K, available at http://www.secinfo.com/dRx61.68u.d.htm#6thPage.

5 June, and August 1999, spending $28,764 of Trust money. By August 31, 1999, he had

accumulated 52,000 shares of Weiners Stores Inc. stock in the Trust, which was over 65

percent of its value. Intentionally placing such a large percentage of the Trust’s assets at a

risk of total loss was grossly negligent. [Dolan v. Dolan, 2009 Tex. App.-Houston Lexis

4487 (The trustee, an experienced businessman, was grossly negligent and ordered to pay

exemplary damages for placing nearly half the trust assets at risk of total loss.)]

21. Weiner Stores Inc. filed for Chapter 11 bankruptcy again in October 2000. It

announced that it was closing all of its stores in June 2001. Andy Weiner sold the Trust’s

52,000 shares in December 2001 for $2, resulting in a complete loss of the Trust’s $28,762

investment. Weiners Stores Inc. converted to a Chapter 7 bankruptcy six months later.

22. During the three years that Daniel’s Trust funds were invested in Weiners Stores Inc.

stock, Daniel’s Trust lost over 12 percent of its portfolio value each year. Investing in

Weiners Stores Inc. was grossly negligent based on the “overall performance of the entire

trust estate,” which is the standard set forth in the Trust Agreement by which the propriety of

an investment will be evaluated.

23. On March 30, 2009, Andy Weiner liquidated the Trust’s entire portfolio and on April 9,

2009 he knowingly and intentionally instructed Fidelity to transfer $90,959.38 to his own

personal account at Fidelity. This left $1,000 in the Trust, with no promissory note, no

interest, and no security for the $90,959.38 loan to Andy Weiner, who was “on the edge of

bankruptcy.” Andy Weiner knew that making the loan to himself was directly contrary to the

Trust Agreement and that it would place the entire Trust portfolio at risk of loss by making

an unsecured loan to a person on the edge of bankruptcy. [Dolan v. Dolan, 2009 Tex. App.-

6 Houston Lexis 4487 (The trustee was found to be grossly negligent and ordered to pay

exemplary damages for loaning himself half the trust funds without interest or security.)]

24. On July 10, 2010, Andy Weiner repaid $90,959.38 to Daniel’s Trust without interest.

Thereafter, he purposely delayed reinvesting the Trust money for 26 months until September

2012 when he finally invested the funds 51 percent in Fidelity Spartan 500 Index Fund

(FUSEX), 31 percent in Fidelity Contrafund (FCNTX), and 18 percent in Fidelity Total Bond

Fund (FTBFX).

25. Had Andy Weiner invested Daniel’s Trust funds on April 9, 2009 in the same funds and

percentages as he purchased for the Trust in September 2012, Daniel’s Trust would have

earned $67,901 from April 9, 2009 to September 11, 2012. Yet the Trust earned less than

$100 during this same time period. In fact, since its inception in 1996, Daniel’s Trust lost an

average of -1.167 percent per year. Based on the “overall performance of Daniel’s entire trust

estate,” it was grossly negligent not to invest Daniel’s Trust money from April 9, 2009 to

September 11, 2012.

26. Failing to invest the Trust assets was also bad faith because Andy Weiner had an

improper motive for not investing the money. He planned to use the trust funds for his own

“personal spending,” according to an email he wrote to Katherine in 2011 stating that he was

ready to consider investing the kid’s trust funds because “If we sell the Tractor’s in the near

term, we would not need their funds for our personal spending.” [Robson v. Gilbreath, 267

S.W.3d 401, 407 (Tex. App.—Austin 2008, pet. denied) (“Improper motive is an essential

element of bad faith.”); In re Hubberd Testamentary Trust, 432 S.W.3d 358, 369 (Tex. App.

San Antonio 2014) ("Bad faith is not simply bad judgment or negligence, but means the

conscious doing of a wrong for dishonest, discriminatory, or malicious purpose.").

7 27. Daniel W. Warren did not discover Andy Weiner’s breaches of fiduciary duty until

discovery began in Cause No. 425,577. Daniel was a minor when the borrowings and

imprudent investing occurred. The period of limitations does not begin to run against a

person entitled to bring an action for breach of fiduciary duty while the person is under 18

years old. [Tex. Civ. Prac. & Rem. Code §§ 16.001, 16.004.] Daniel W. Warren became age

18 on March 11, 2014 and is thus within the limitations period for bringing this action.

28. On December 19, 2013, Daniel W. Warren, through his attorney, demanded an

accounting of his Trust under Texas Property Code § 113.151-152. Andy Weiner has not yet

provided one.

CAUSES OF ACTION

29. Daniel W. Warren incorporates by reference each and every allegation contained in the

30. There is a real and justiciable controversy between Daniel W. Warren and Andy

Weiner concerning Andy Weiner’s actions as trustee of Daniel’s Trust.

31. Andy Weiner has knowingly, intentionally, and with gross negligence breached his

fiduciary duties in the following manner, resulting in a material loss to the Trust:

a. By knowingly and intentionally exposing over 65 percent of Daniel’s Trust

funds to an extreme degree of risk by investing in Weiner Stores Inc., a highly speculative

unlisted penny stock with no earnings or dividend history, resulting in a complete loss of the

$28,762 investment, plus any future earnings it could have made, in violation of the duty to

prudently invest the Trust assets without speculation under the Texas Property Code §

113.056 as it applied prior to January 1, 2004, resulting in a material loss to the Trust;

8 b. By knowingly and intentionally instructing Fidelity to transfer nearly all of

Daniel’s Trust funds to Andy Weiner’s own personal account at Fidelity on April 9, 2009, in

violation of the Trust Agreement, which expressly forbids “loans to a trustor or any spouse

of a trustor” and “loans to any person without adequate interest” [Paragraph E-3(a) of the

Trust Agreement], which Andy Weiner read before he transferred the money to himself,

resulting in a material loss to the Trust;

c. By knowingly and intentionally instructing Fidelity to transfer nearly all of

Daniel’s Trust funds to Andy Weiner’s own personal account at Fidelity on April 9, 2009 in

violation of the Trust Agreement Paragraph C-1, which expressly forbids “distributions to a

trustor, or in any manner that discharges a legal obligation (including an obligation of

support) of a trustor or any spouse of a trustor,” resulting in a material loss to the Trust;

d. By failing to compensate Daniel’s Trust for Andy Weiner’s personal use of

$90,959.38 belonging to the Trust, resulting in a material loss to the Trust;

e. By knowingly and intentionally putting his own interest above the beneficiary’s

by using Daniel’s Trust funds as Andy Weiner’s own money, in violation of the duty of

loyalty under Texas Trust Code § 117.007, the duty not to profit by self-dealing with the

Trust under Texas Trust Code § 114.0001(a), and the duty to segregate trust assets under

Restatement of the Law Third (Trusts) § 179, resulting in a material loss to the Trust;

f. By knowingly, intentionally, and with bad faith failing to invest Daniel’s

Trust funds from April 9, 2009 to September 11, 2012 in violation of the duty to prudently

invest the Trust assets under Texas Property Code § 117.004 and the duty of loyalty under

Texas Property Code § 117.007, resulting in a material loss to the Trust;

9 g. By refusing to render an accounting after written demand by Daniel W.

Warren on December 19, 2013 in violation of the duty to account under Texas Trust Code

32. Daniel and his Trust have suffered substantial economic damages as a direct result

of Andy Weiner’s gross negligence and material breaches of fiduciary duty enumerated

33. Removal of Andy Weiner as Trustee is necessary to prevent further harm to the Trust.

WHEREFORE, Daniel W. Warren respectfully requests:

34. Judgment against Andy Weiner for a sum within the jurisdictional limits of the Court.

35. Monetary relief of over $200,000 but not more than $1,000,000.

36. Removal of Andy Weiner as Trustee of the Daniel Steven Weiner 1996 Trust pursuant

to Texas Property Code §§ 114.008(a)(7) and 113.082;

37. That Andy Weiner be ordered to pay money or restore property to Daniel’s Trust equal

to the trust’s lost profits caused by Andy Weiner’s improper borrowing and failure to

prudently invest the Trust funds, pursuant to Texas Property Code § 114.008(a)(3) and its

predecessor Texas Property Code § 113.056;

38. That Andy Weiner be ordered to pay Daniel’s Trust exemplary damages of greater than

two times the Trust’s economic damages based his knowing, intentional, and reckless dealing

with Trust property worth over $20,000 in a manner that is contrary to the Trust Agreement

and the Texas Property Code, and involved a substantial risk of loss to the Trust. [Tex. Civ.

Prac. & Rem. Code § 41.008(b), 41.008(c)(10); Tex. Penal Code § 32.45].

10 39. That Daniel W. Warren be awarded reasonable and necessary attorney fees, costs, and

expenses through trial and all appeals under applicable Texas law, including but not limited

to Texas Civ. Prac. & Rem. Code § 38.001 and Texas Property Code §§ 114.064 and

40. That Andy Weiner be ordered to submit an accounting that meets the requirements of

Texas Property Code § 113.152 and personally bear the cost of the accounting pursuant to

Texas Property Code § 113.151.

41. That Daniel’s Trust be modified pursuant to Texas Property Code § 112.054(a)(3) to

appoint Daniel Warren as co-Trustee with Katherine Warren, or alternatively to terminate the

Trust and distribute the funds to Daniel Warren.

42. That Daniel W. Warren and his Trust be awarded prejudgment and post judgment

interest at the rate of 5 percent as provided by the Texas Finance Code § 304.003(c), or as

otherwise appropriate.

PRAYER

WHEREFORE PREMISES CONSIDERED, Daniel W. Warren prays that the Court grant

the requested relief and such further relief to which Daniel W. Warren and his Trust are

By:_/s/ Carol A. Cantrell Carol A. Cantrell, Attorney for Daniel W. Warren Texas Bar No.: 24043592 Meredith N. McIver Texas Bar No.: 24078974 3700 Buffalo Speedway, Suite 520 Houston, TX 77098 Phone: 713-333-0555 Fax: 713-333-0550

11 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument has been duly served by citation and/or electronic service to counsel of record indicated below on this December 1, 2014.

Sarah Patel Pacheco Kathleen Tanner Beduze Crain Caton & James Five Houston Center, 1401 McKinney, 17th Floor Houston, TX 77010 pacheco-efile@craincaton.com 713-658-1921 (facsimile) ATTORNEY FOR RESPONDENT ANDY I. WEINER

Thomas R. Conner Conner & Lindamood, P.C. 1221 Lamar, Suite 1010 Houston, TX 77010 tom@lawcl.com 713-654-8115 (facsimile) ATTORNEY FOR KATHERINE R. WARREN

By:_/s/ Carol A. Cantrell

12 No. 425,577

IN RE: § IN THE PROBATE COURT § OJ\ VID ABRAHAM WEINER § NO . ..+ ':is 1994 TRUST § HARRIS COUNTY, TEXAS

AMEN DED ORDER ON MOTION TO SEVER

On this date. the Court having considered Daniel W. Warren's Motion to Sever and the Court's written and verbal Orders on August 27-28. 2014. GRANTS the Motion to Sever as follows. It is hereby:

ORDERED that Danie l W. Warren shall restate the claims set forth in his Motion to Sever as a new Original Petition by December I, 2014 and complete service pursuant to the rules that would apply to a new lawsuit. It is fur1her,

ORDERED that the Court Clerk assign Cause No. 425,576-401 to Daniel W. Warren's new Original Petition. It is further.

ORDERED that Daniel W. Warren file all future pleadings. motions. and other papers under Cause No. 425576-40 I as Petitioner rather than Intervenor. ll is further.

ORDERED that all prior discovery. orders. motions, responses and answers pertainjng to Daniel W. Warren in Cause No. 425,577 shall apply in the same ma1111er as if such had occurred in Cause No. 425,576-401, and that the Clerk of this Court is hereby directed to transfer and file copies of the following pleadings and orders from Cause No. 425,577 to Cause No. 425,576-40 I:

1. Daniel W. Warren's Original Petition in Intervention: docket entry date 4-22-14 2. Andy Weiner's Motion for Partial Summary Judgment (a copy of wh ich shall remain filed in Cause No. 425,577): docket entry date 7-15-14 3. Andy Weiner's Special Exceptions to the Original Petition in Intervention filed by Daniel W. Warren; docket entry date 8-5-14 4. Notice of Submission of Andy Weiner's Motion fo r Partial Summary Judgment (a copy of which shall remain filed in Cause No. 425,577); docket entry date 8-5-14 5. Petitioners' Notice of Nonsuit Against Katherine Warren (a copy of which shall remain filed in Cause No. 425.577); docket entry date 8-7-14

A 6. Andy Weiner's Motion to Compel Depositions (a copy of which shall remmn filed in Cause No. 425,577): docket entry date 8-14-14 7. Petitioners' Joint Motion lor Partial Summary Judgment (a copy of which shall remain filed in Cause No. 425,577): docket entry date 7-1-14 8. Motion for Continuance of Hearing on Motion for Prutial Summary Judgment (a copy of which shall remain filed in Cause No. 425,577); docket entry date 8- 14- 14 9. Petitioners' Response to Andy Weiner's Motion to Compel (a copy of which shall remain filed in Cause No. 425.577): docket entry date 8-18-14 I0. Andy Weiner's Special Exceptions to Petitioners' Joint Motion for Partial Summary Judgment (a copy of which shall remain filed in Cause No. 425,577): docket entry date 8-22-14 II. Petitioners' Response to Andy Weiner's Motion for Continuance (a copy of which shall remain filed in Cause No. 425.577): docket entry date 8-25-14 12. Petitioners' Response to Andy Weiner's Special Exceptions to Petitioners' .Joint Motion for Partial Summary Judgment (a copy of which shall remain filed Ill Cause No. 425.577); docket entry date 8-25-14 13. Order Granting Andy Weiner's Special Exceptions to the Original Petition m Intervention filed by Dru1iel W. Warren: docket entry date 8-29-14 14. Order Denying Motion for Sanctions: docket entry date 8-29-14 15. Order Partially Granting and Partially Denying Andy Weiner's Special Exceptions to Petitioners' Joint Motion lor Partial Summary Judgment (a copy or which shall remain filed in Cause No. 425.577): docket entry date 9-4-14 16. Daniel W . Warren's Motion to Sever: docket entry date 9-8-14 17. Order Pattially Granting ru1d Partially Denying Andy Weiner's Motion for Partial Summary Judgment (a copy of which shall remain filed in Cause No. 425,577): docket entry date 9-26-14 18. Order Granting Motion to Sever: signed I 1-5-14 19. Cow·t's Docket Sheet: docket entry date 8-29-14

20. Andy Weiner's First Supplement To Original Answer; docket entry date 7-8-14

21. Petitioner's Response to Andy Weiner's Motion for Partial Traditional Summary Judgment; docket entry date 8-5-14;

22. Petitioner's Application to Quash Deposition of Daniel Warren; docket entry date 8-11-14;

23. Order to Compel Depositions Granted: docket entry date 8-29-14: and

24. Petitioner's Responses to Andy Weiner's Special Exceptions to Petition m intervention and Motion for Sanctions; docket entry date 8-19-14.

ORDERED that Cause No. 425,576-401 is subject to the deadlines set out in the Agreed Docket Control Order dated August 27, 2014 relating to Cause No. 425,577. It is fm1her,

ORDERED that all costs related to the copying, transfer, and filing of items l through 24 herein be assessed against Daniel Warren. It is fut1hcr,

ORDERED that if Daniel W. Warren fails to file a new Original Petition by the 1st day of December, 2014 as Cause No. 425,576-401, his pleading in Cause No. 425,577 will be dismissed.

SIGNED on this _lJ_ day of N~ , 2014.

PRESIDING JUDGE DANIEL STEVEN WEINER 1996 TRUST

By this trust agreement, Andy I. Weiner and Katherine Friedman Weiner, husband and wife, both of Harris County, Texas, as "trustors," establish the Daniel steven Weiner 1996 Trust for the benefit of their son, Daniel steven Weiner ("Daniel"), born March 11, 1996. Trustors grant, assign and deliver to Andy I. Weiner and Katherine Friedman Weiner, both of Harris County, Texas, as "trustees," the property described in Attachment A. Attachment A, which is captioned "Initial Contributions to the Daniel Steven Weiner 1996 Trust, 11 is incorporated by reference as a part of this trust agreement. This trust agreement and the trusts established by it are irrevocable. No person shall have the right to revoke or amend this trust agreement or any of its provisions. However, property acceptable to the trustee may be added to any trust from time to time in the future by trustors or by any other person (including additions pursuant to the provisions of the last will of any person) .

All references to "trustee" shall refer to the person or persons then acting as such. A. PRIMARY TRUST

A-1. Distributions . The income of the trust may be accumulated and retained, in whole or in part, or the trustee may distribute to Daniel, from time to time, so much or all of the trust estate as, in the trustee's discretion, is in Daniel's best interests.

A-2. Termination. Daniel may withdraw any part or all of the trust estate within 60 days after he becomes age 21, and may thereby terminate the trust as to the part withdrawn. Exercise of this withdrawal right shall be by one or more written instruments delivered to the trustee within the 60-day period. If or to the extent that Daniel does not exercise this withdrawal right, the trust shall continue until Daniel becomes age 30 or dies before that age, at which time the trust estate shall be distributed:

(b) If Daniel is not then living, to such one or more persons, corporations or organizations (including Daniel's estate) , as Daniel appoints by a will which specifically refers to this power of appointment. If or to the extent that Daniel does not effectively exercise this power of appointment, the trust estate shall be distributed:

(1) To Daniel's descendants. (2) If none of Daniel's descendants is then living, to trustors' descendants. .-............. . EXHIBIT exhibitsticker.com

B ( 3) If none of trusters' descendants is then living, to trusters' heirs. A-3. Payment of Taxes. If Daniel's will contains no contrary directions, the trustee shall pay from the trust estate the entire increment in taxes payable by reason of Daniel's death (including any interest or penalties thereon) to the extent (if any) that the total of such taxes is greater than would have been imposed if no portion of the trust estate were taken into account in determining such taxes.

B. CONTINGENT TRUSTS B-1. Trusts Established. Any portion of a trust estate upon the trusts termination (other than a portion withdrawn by Daniel pursuant to Paragraph A-2) which would be distributable to a beneficiary who is under age 30 or to a beneficiary who is under a legal disability instead shall be distributed to the trustee of a Contingent Trust (unless otherwise directed by the valid exercise of a power of appointment) . Each beneficiary's portion so distributed shall be held and administered as the initial trust estate of a separate trust for the beneficiary. However, if a Contingent Trust is already in existence for that beneficiary, any additional portion to be distributed to the trustee of a Contingent Trust for the beneficiary shall be added to the trust estate of the existing contingent Trust. B-2. Distributions. The income of each Contingent Trust may be accumulated and retained, in whole or in part, or the trustee may distribute to the beneficiary for whom the trust was established, from time to time, so much or all of the trust estate as, in the trustee's discretion, is in the beneficiary's best interests.

B-3. Termination. Each Contingent Trust shall terminate when the beneficiary for whom the trust was established has become age 30 and is under no legal disability or upon the beneficiary's earlier death. Upon termination, the trust estate shall be distributed:

(b) If the beneficiary is not then living, to such one or more persons, corporations or organizations as the beneficiary appoints by a will which specifically refers to this power of appointment. If none of the beneficiary's descendants is then living, this power may not be exercised in favor of the beneficiary, the beneficiary's estate, the beneficiary's creditors or the creditors of the beneficiary's estate. If or to the extent that the beneficiary does not effectively exercise this power of appointment, the trust estate shall be distributed:

-2- (2) If none of the beneficiary's descendants is then living, to the descendants of the beneficiary's nearest ancestor who was one of trustors' descendants and who has descendants then living.

(3) If none of these persons is then living, to trusters, descendants. ( 4) If none of trustors' descendants is then living, to trustors' heirs. C. DISTRIBUTIONS c-1. Distributions to or for Beneficiaries. During the term of a trust, any distribution to be made to a beneficiary from the trust may be made (i) to the beneficiary, (ii) if the beneficiary is under a legal disability or if the trustee determines that the beneficiary is unable to properly manage his affairs, to a person furnishing support, maintenance or education for the beneficiary or with whom the beneficiary is residing, for expenditure on the beneficiary's behalf, or (iii) to a custodian for a minor beneficiary, as selected by the trustee, under the Uniform Gifts to Minors Act of any state. Alternatively, the trustee may otherwise apply all or a part of the distribution for the beneficiary's benefit. However, no such distribution shall be made to a trustor, to any spouse of a trustor, or in any manner that discharges a legal obligation (including an obligation of support) of a trustor or any spouse of a trustor. Any distribution under this paragraph shall be a full discharge of the trustee with respect thereto.

c-2. Best Interests of Beneficiary. In making distributions in the "best interests" of a beneficiary, the trustee may consider the age of the beneficiary, the costs of the beneficiary's support, maintenance, education and comfort without regard to any other resources available to the beneficiary for these purposes, the effect of any distribution upon the income and transfer tax liability of the beneficiary or of the trust, and any other factors deemed relevant by the trustee.

0-1. Successor Trustee, Co-Trustee. The following provisions shall apply to each separate trust established under this trust agreement:

(a) Successor Trustee. Should Andy I. Weiner or Katherine Friedman Weiner cease to act as trustee, for any reason, the one remaining shall continue to act as trustee. Should both Andy I. Weiner and Katherine Friedman Weiner cease to act as trustees, for any reason, trustors appoint Bayle Weiner Drubel as successor trustee.

-3- (b) Appointment of Successor Trustee by Trustee . At any time after qualifying as trustee, any trustee may appoint a successor trustee to act in his place, either immediately or in the future upon any stated contingency, and may thereby supplement the provisions of subparagraph (a). (c) Appointment of Successor Trustee by Beneficiaries. If at any time there is no trustee acting and none has been appointed, a majority of the beneficiaries (acting through the beneficiary's natural or legal guardian or legal representative, in the case of a beneficiary under a legal disability) who might then be entitled to receive a distribution from the trust estate shall appoint a successor trustee. (d) Appointment of Co-Trustee. The trustee (acting unanimously if more than one) may appoint one or more co-trustees. (e) Who May Be Appointed. A successor trustee or co-trustee may be any individual, bank or trust company and may be domiciled anywhere. (f) Procedure for Appointment. Appointment shall be made by written instrument filed with the trust records. Any such appointment may be changed or revoked prior to the date it becomes effective. Any such appointment may be limited in any manner deemed advisable by the person making the appointment, including, for example, restricting the power over distributions as necessary to avoid the imposition of any tax upon the trust, the appointee or the appointee's estate. D-2. Resignation of Trustee. A trustee may resign from a trust without the necessity of any court proceeding upon meeting these conditions: (a) Notice . At least 30 days' written notice (if not waived) shall be given to each beneficiary who might then be entitled to receive a distribution from the trust estate. If a beneficiary is under a legal disability, notice shall be given to (or waived by) the beneficiary's natural or legal guardian. (b) Accounting . If and to the e x tent required by the successor trustee, an accounting for the administration of the trust shall be given to the successor trustee. The successor trustee shall be fully protected in relying upon such accounting. D-3. Rights and Liabilities.

(a) Bond Not Required. No bond or other security shall be required of any trustee.

-4- favor of the validity of any act by or omission of any trustee. A trustee shall not be liable for any act or omission except in the case of gross negligence, bad faith or fraud. Specifically, in assessing the propriety of any investment of a trust estate, the overall performance of the entire trust estate shall be taken into account.

(c) Compensation. Each trustee shall be entitled to receive reasonable compensation for services actually rendered to a trust.

E-1. General Powers of Trustee. To carry out the trust purposes but subject to any limitations stated elsewhere herein, the trustee of each trust shall have the following powers, which may be exercised free from court supervision, and which shall exist until all of the trust estate has been distributed:

(a) Trust Estate. The trustee may invest and reinvest all or any part of the trust estate in property of any description and may retain as a part of the trust estate any property acquired at any time and in any manner. Specifically, and without regard to the provisions of any applicable state law, the trustee may retain, or invest and reinvest in, property unproductive of income, shares of open or closed end investment trusts or companies, wasting assets, and any other property, regardless of location and without regard to any requirement of diversification as to kind or amount.

(b) Business Interests. The trustee may continue operation of any business entity, in any business form, with all or any part of the trust estate, and may reorganize or liquidate any such entity at any time.

(c) Transfers, Loans. The trustee may lease, sell, transfer, or encumber in any manner (including with purchase money mortgages) all or any part of the trust estate, and may loan or borrow money in any manner (including by joint and several obligations) with or without security. Subject to the provisions of Paragraph E-3{a), the trustee may purchase assets from the estate of a trustor and may loan funds to the estate of a trustor at such rate of interest and with such security as the trustee determines to be in the best interests of the current beneficiaries of the trust.

(d) Dealings With Related Parties. The trustee may deal with any person or entity regardless of any relationship or identity of any trustee to or with that person or entity and may hold or invest all or any part of the trust estate in common or undivided interests with that person or entity.

(e) Agents, Employees. The trustee may employ and compensate agents and other employees ~nd may delegate to them any and all discretions and powers.

-5- (f) Partitions, Distributions. The trustee may partition all or any part of any interest, may pay and receive such moneys or properties as may be necessary to equalize differences, and in so doing (i) may make any distribution of all or any part of the trust estate in any manner (including composing shares differently) and (ii) may evaluate any property, which valuation shall be binding on all beneficiaries. (g) Claims, Controversies. The trustee may maintain and defend any claim or controversy by or against the trust without the joinder or consent of any beneficiary. (h) Additional Powers. In addition, the trustee shall have all rights, privileges and powers now or hereafter granted to trustees in Texas, including those granted under the Texas Trust Code. Any subsequent legislation or regulation expanding or limiting the rights, privileges and powers granted a trustee shall apply to all trusts hereunder unless the trustee elects not to have such legislation or regulation apply to a particular trust by a written instrument filed with the trust records. However, the provisions made for the various beneficiaries under this trust agreement are exclusive. Any statute that purports to enlarge the class of beneficiaries to whom distributions may be made or the purposes for which distributions may be made shall not apply to any trust. All trust powers may be exercised upon such terms as the trustee deems advisable and may affect trust properties for any length of time regardless of the duration of the trust. Generally, and subject only to the terms of this trust agreement, the trustee shall hold, manage, control, use, invest, reinvest, and dispose of the trust estate to the same extent as if the trustee were the fee simple owner thereof. E-2. Principal and Income Determinations. The receipts, disbursements and reserves of each trust may be allocated, on a cash or accrual basis, between principal and income in the trustee's discretion without regard to the provisions of any statute. To the extent the trustee does not exercise this discretionary power, the provisions of the Texas Trust Code shall control. E-3. Restrictions on the Exercise of Certain Powers. (a) Dealings with Trust Estate. No power granted the trustee shall be construed to enable any person to purchase, exchange, or otherwise deal with or dispose of any trust estate for less than an adequate consideration in money or money's worth or to authorize loans to any person without adequate interest. No part of any trust estate may be (i) loaned to a trustor or to any spouse of a trustor or (ii) applied to the payment of premiums on policies of insurance on the life of a trustor or on the life of any spouse of a trustor.

-6- (b) Distributions to or for Trustee. Any power to make discretionary distributions to or for the benefit of a person who is serving as trustee of a trust (including distributions to the person's spouse and distributions in discharge of any legal obligation of the person) shall be exercisable solely by the trustee or trustees other than that person. If no other trustee is then serving, such power shall not be exercisable.

E-4. Release and Delegations of Powers. Any power granted to a trustee may be released, in whole or in part, temporarily or permanently. Except as provided in Paragraph E-3, any such power may be delegated, in whole or in part, temporarily or permanently, to any other trustee then acting. A release or delegation shall be by written instrument filed with the records of each trust to which the release or delegation applies. F. DEFINITIONS AND GENERAL PROVISIONS F-1. Trust Estate. "Trust estate" means all assets, however and whenever acquired (including income and accumulated income), which may belong to a trust at any given time.

F-2. Descendants. "Descendants" means the legitimate children of the person or persons designated and the legitimate lineal descendants of such children, and includes any person adopted before becoming age 18 and the adopted person's descendants. A posthumous child shall be considered as living at the death of his parent. Whenever a distribution is to be made to the descendants of any person, the property to be distributed shall be divided into as many equal shares as there are living children of the person and deceased children of the person who left descendants who are then living. Each living child shall take one share and the share of each deceased child shall be divided among his then living descendants in the same manner. "Trusters' descendants" includes only those persons descended from both trusters. F-3. Heirs. Any distribution to be made to the "heirs" of a person shall be made to the individuals who would have inherited the person's personal property if the person had died intestate at the time the distribution is to be made, domiciled in Texas and not married, under the laws of Texas in force on the effective date of this trust agreement, with the shares of taking determined by those laws. However, both trusters and any spouse of a trustor shall be deemed to have died prior to the time that any such distribution is to be made. A distribution to "trusters' heirs" shall be made to the heirs of Andy I. Weiner. F-4. Internal Revenue Code. "Internal Revenue Code" means the Internal Revenue Code of 1986, as amended, or corresponding provisions of any subsequent federal tax laws.

-7- F-5. Other Terms. The use of any gender includes the other genders, and the use of either the singular or the plural includes the other. F-6. Spendthrift Provision. No beneficiary shall have the power to anticipate, encumber, or transfer his interest in any trust estate in any manner. No part of any trust estate shall be liable for or charged with any debts, contracts, liabilities or torts of a beneficiary or subject to seizure or other process by any creditor of a beneficiary. Nothing in this paragraph shall be construed to limit the otherwise valid exercise of a power of appointment or right of withdrawal given by this trust agreement.

F-7. Texas Law Applies. The situs of the trusts established under this trust agreement is Texas. Wherever possible, the laws of Texas shall apply to the construction, administration and validity of each trust. F-8. Maximum Term of Trusts. No trust shall continue for a period longer than 21 years after the death of the last to die of trustors and all of trustors' descendants who are living on the effective date of this trust agreement. Any trust still in force at the end of such period shall terminate, and the trust estate shall be distributed to the beneficiary for whom the trust was established. F-9. Powers of Appointment Exercisable by Beneficiaries. In exercising a power of appointment given to a beneficiary by this trust agreement, the beneficiary may appoint the property subject to the power outright to the appointee, in trust, or to a custodian for the appointee under the Uniform Gifts to Minors Act of any state. If the beneficiary appoints to a custodian, he may select the custodian. If the beneficiary appoints in trust, he may select the trustee or trustees, may establish such administrative terms for the trust as he deems appropriate, and may impose lawful spendthrift restrictions. He may give the trustee discretionary powers over the income and principal, and may create a trust that has several permissible distributees. He may create life interests or other limited interests in some appointees with future interests in favor of other appointees, may appoint different types of interests among the appointees, and may create new powers of appointment in a trustee or trustees or in any appointee. He may impose lawful conditions on an appointment and,, in general, may appoint to or among the appointees in any lawful manner. In determining whether, in what manner and to what extent a testamentary power of appointment has been exercised by a beneficiary, the trustee may act in reliance upon a court order admitting an instrument to probate as the beneficiary's last will or an order finding that the beneficiary died intestate. Unless within six months after the beneficiary's death the trustee has actual notice of the existence of proceedings to probate a will of the beneficiary, the trustee shall assume that the beneficiary died -8- intestate. The foregoing provisions are intended to expedite the prompt and efficient administration of the trust and to protect the trustee from any action taken or distribution made in accordance with these provisions. Nothing in this paragraph shall limit or qualify any power of appointment given by this trust agreement or any right which an appointee or taker in default of appointment may have against any person receiving a distribution from the trustee irrespective of the place of probate or of the time of discovery of a will exercising the power or any other action taken in the beneficiary's estate.

By signing this trust agreement, the trustee (i) accepts these trusts and all of the rights, powers and duties attached to the office of trustee as provided herein, (ii) agrees to serve as trustee of the Daniel Steven Weiner 1996 Trust and of any Contingent Trusts which may be established under this trust agreement, (iii) acknowledges receipt of the property described in Attachment A, and (iv) agrees to hold and administer each trust estate in accordance with the terms of this trust agreement. This trust agreement is executed effective as of the 20th day of March, 1996.

-9- ATTACHMENT A: INITIAL CONTRIBUTIONS TO THE DANIEL STEVEN WEINER 1996 TRUST

Katherine Friedman Weiner, Trustor and Trustee 3559:painsc\0157136

-10- No. 425,577

INRE: § IN THE PROBATE COURT § DAVID ABRAHAM WEINER § N0.4 § 1994 TRUST § HARRIS COUNTY, TEXAS

On this date, the Court having considered Daniel W. Warren' s Motion to Sever and the Court's written and verbal Orders on August 27-28 , 2014, GRANTS the Motion to Sever as follows . It is hereby:

ORDERED that Daniel W. Warren shall restate the claims set forth in his Motion to Sever as a new Original Petition by December 1, 2014 and complete service pursuant to the rules that would apply to a new lawsuit. It is further,

ORDERED that the Court Clerk assign Cause No . 425 ,576-401 to Daniel W. Warren ' s new Original Petition. It is further,

ORDERED that Daniel W. Warren file all future pleadings, motions, and other papers under Cause No. 425 ,576-401 as Petitioner rather than Intervenor. It is further,

ORDERED that all prior discovery, orders, motions, responses and answers pertaining to Daniel W. Warren in Cause No. 425 ,577 shall apply in the same manner as if such had occurred in Cause No. 425 ,576-401, and that the Clerk of this Court is hereby directed to transfer and file copies of the following pleadings and orders from Cause No. 425,577 to Cause No. 425 ,576-401:

I. Daniel W. Warren' s Original Petition in Intervention; docket entry date 4-22-14 2. Andy Weiner' s Motion for Partial Summary Judgment (a copy of which shall remain filed in Cause No. 425 ,577); docket entry date 7-15-14 3. Andy Weiner' s Special Exceptions to the Original Petition in Intervention filed by Daniel W. Warren; docket entry date 8-5-14 4. Notice of Submission of Andy Weiner ' s Motion for Partial Summary Judgment (a copy of which shall remain filed in Cause No. 425 ,577); docket entry date 8-5-14 5. Petitioners ' Notice of Nonsuit Against Katherine Warren (a copy of which shall remain filed in Cause No. 425 ,577); docket entry date 8-7-14

A 6. Andy Weiner' s Motion to Compel Depositions (a copy of which shall remain filed in Cause No . 425 ,577); docket entry date 8-14-14 7. Petitioners ' Joint Motion for Partial Summary Judgment (a copy of which shall remain filed in Cause No. 425 ,577); docket entry date 7-1-14 8. Motion for Continuance of Hearing on Motion for Pruiial Summary Judgment (a copy of which shall remain filed in Cause No . 425 ,577); docket entry date 8-14- 14 9. Petitioners' Response to Andy Weiner' s Motion to Compel (a copy of which shall remain filed in Cause No . 425 ,577); docket entry date 8-18-14 10. Andy Weiner' s Special Exceptions to Petitioners ' Joint Motion for Partial Summary Judgment (a copy of which shall remain filed in Cause No. 425 ,577); docket entry date 8-22-14 11. Petitioners' Response to Andy Weiner' s Motion for Continuance (a copy of which shall remain filed in Cause No. 425 ,577); docket entry date 8-25-14 12. Petitioners ' Response to Andy Weiner' s Special Exceptions to Petitioners' Joint Motion for Partial Swnmary Judgment (a copy of which shall remain filed in Cause No. 425 ,577); docket entry date 8-25-14 13. Order Granting Andy Weiner' s Special Exceptions to the Original Petition in Intervention filed by Daniel W. Warren; docket entry date 8-29-14 14. Order Denying Motion for Sanctions; docket entry date 8-29-14 15. Order Pruiially Grru1ting and Partially Denying Andy Weiner's Special Exceptions to Petitioners' Joint Motion for Pruiial Summary Judgment (a copy of which shall remain filed in Cause No . 425 ,577) ; docket entry date 9-4-14 16. Daniel W. Warren ' s Motion to Sever; docket entry date 9-8-14 17. Order Partially Granting at1d Partially Denying Andy Weiner' s Motion for Partial Summary Judgment (a copy of which shall remain filed in Cause No. 425 ,577); docket entry date 9-26-14 18. Order Granting Motion to Sever; signed 11-5-14 19. Cowi' s Docket Sheet; docket entry date 8-29-14

20. Andy Weiner's First Supplement To Original Answer; docket entry date 7-8-14

21. Petitioner' s Response to Andy Weiner' s Motion for Pariial Traditional Swnmru·y Judgment; docket entry date 8-5-14;

22. Petitioner' s Application to Quash Deposition of Dru1iel WatTen; docket entry date 8-11-14;

23. Order to Compel Depositions Granted; docket entry date 8-29-14; and

24. Petitioner' s Responses to Andy Weiner' s Special Exceptions to Petition 111 Intervention and Motion for Sanctions; docket entry date 8-19-14.

ORDERED that Cause No. 425,576-401 is subject to the deadlines set out in the Agreed Docket Control Order dated August 27, 2014 relating to Cause No. 425,577. It is further,

ORDERED that all costs related to the copying, transfer, and filing of items 1 through 24 herein be assessed against Daniel Warren. It is further,

ORDERED that if Daniel W. Warren fails to file a new Original Petition by the 1st day of December, 2014 as Cause No. 425 ,576-401 , his pleading in Cause No. 425,577 will be dismissed.

SIGNED on this _JJ_ day of f'J~ , 2014.

By this trust agreement, Andy I. Weiner and Katherine Friedman Weiner, husband and wife, both of Harris County, Texas, as "trustors," establish the Daniel steven Weiner 1996 Trust for the benefit of their son, Daniel Steven Weiner ("Daniel"), born March 11, 1996. Trustors grant, assign and deliver to Andy I. Weiner and Katherine Friedman Weiner, both of Harris County, Texas, as "trustees," the property described in Attachment A. Attachment A, which is captioned "Initial Contributions to the Daniel Steven Weiner 1996 Trust," is incorporated by reference as a part of this trust agreement. This trust agreement and the trusts established by it are irrevocable. No person shall have the right to revoke or amend this trust agreement or any of its provisions. However, property acceptable to the trustee may be added to any trust from time to time in the future by trustors or by any other person (including additions pursuant to the provisions of the last will of any person).

All references to "trustee" shall refer to the person or persons then acting as such. A. PRIMARY TRUST

A-1. Distributions . The income of the trust may be accumulated and retained, in whole or in part, or the trustee may distribute to Daniel, from time to time, so much or all of the trust estate as, in the trustee's discretion, is in Daniel's best interests.

A-2. Termination. Daniel may withdraw any part or all of the trust estate within 60 days after he becomes age 21, and may thereby terminate the trust as to the part withdrawn. Exercise of this withdrawal right shall be by one or more written instruments delivered to the trustee within the 60-day period. If or to the extent that Daniel does not exercise this withdrawal right, the trust shall continue until Daniel becomes age 30 or dies before that age, at which time the trust estate shall be distributed:

(b) If Daniel is not then living, to such one or more persons, corporations or organizations (including Daniel's estate) , as Daniel appoints by a will which specifically refers to this power of appointment. If or to the extent that Daniel does not effectively exercise this power of appointment, the trust estate shall be distributed:

(1) To Daniel's descendants. (2) If none of Daniel's descendants is then living, to trustors' descendants. . .............. . EXHIBIT exhibitsticker.com

B ( 3) If none of trusters' descendants is then living, to trusters' heirs. A-3. Payment of Taxes. If Daniel's will contains no contrary directions, the trustee shall pay from the trust estate the entire increment in taxes payable by reason of Daniel's death (including any interest or penalties thereon) to the extent (if any) that the total of such taxes is greater than would have been imposed if no portion of the trust estate were taken into account in determining such taxes.

B. CONTINGENT TRUSTS B-1. Trusts Established. Any portion of a trust estate upon the trusts termination (other than a portion withdrawn by Daniel pursuant to Paragraph A-2) which would be distributable to a beneficiary who is under age 30 or to a beneficiary who is under a legal disability instead shall be distributed to the trustee of a Contingent Trust (unless otherwise directed by the valid exercise of a power of appointment) . Each beneficiary's portion so distributed shall be held and administered as the initial trust estate of a separate trust for the beneficiary. However, if a Contingent Trust is already in existence for that beneficiary, any additional portion to be distributed to the trustee of a Contingent Trust for the beneficiary shall be added to the trust estate of the existing contingent Trust. B-2. Distributions. The income of each Contingent Trust may be accumulated and retained, in whole or in part, or the trustee may distribute to the beneficiary for whom the trust was established, from time to time, so much or all of the trust estate as, in the trustee's discretion, is in the beneficiary's best interests.

B-3. Termination. Each Contingent Trust shall terminate when the beneficiary for whom the trust was established has become age 30 and is under no legal disability or upon the beneficiary's earlier death. Upon termination, the trust estate shall be distributed:

(b) If the beneficiary is not then living, to such one or more persons, corporations or organizations as the beneficiary appoints by a will which specifically refers to this power of appointment. If none of the beneficiary's descendants is then living, this power may not be exercised in favor of the beneficiary, the beneficiary's estate, the beneficiary's creditors or the creditors of the beneficiary's estate. If or to the extent that the beneficiary does not effectively exercise this power of appointment, the trust estate shall be distributed:

-2- (2) If none of the beneficiary's descendants is then living, to the descendants of the beneficiary's nearest ancestor who was one of trustors' descendants and who has descendants then living. (3) If none of these persons is then living, to trusters, descendants. ( 4) If none of trusters' descendants is then living, to trusters' heirs. C. DISTRIBUTIONS c-1. Distributions to or for Beneficiaries. During the term of a trust, any distribution to be made to a beneficiary from the trust may be made (i) to the beneficiary, (ii) if the beneficiary is under a legal disability or if the trustee determines that the beneficiary is unable to properly manage his affairs, to a person furnishing support, maintenance or education for the beneficiary or with whom the beneficiary is residing, for expenditure on the beneficiary's behalf, or (iii) to a custodian for a minor beneficiary, as selected by the trustee, under the Uniform Gifts to Minors Act of any state. Alternatively, the trustee may otherwise apply all or a part of the distribution for the beneficiary's benefit. However, no such distribution shall be made to a trustor, to any spouse of a trustor, or in any manner that discharges a legal obligation (including an obligation of support) of a trustor or any spouse of a trustor. Any distribution under this paragraph shall be a full discharge of the trustee with respect thereto.

c-2. Best Interests of Beneficiary. In making distributions in the "best interests" of a beneficiary, the trustee may consider the age of the beneficiary, the costs of the beneficiary's support, maintenance, education and comfort without regard to any other resources available to the beneficiary for these purposes, the effect of any distribution upon the income and transfer tax liability of the beneficiary or of the trust, and any other factors deemed relevant by the trustee.

D-1. Successor Trustee, Co-Trustee. The following provisions shall apply to each separate trust established under this trust agreement:

(a) Successor Trustee. Should Andy I. Weiner or Katherine Friedman Weiner cease to act as trustee, for any reason, the one remaining shall continue to act as trustee. Should both Andy I. Weiner and Katherine Friedman Weiner cease to act as trustees, for any reason, trustors appoint Bayle Weiner Drubel as successor trustee.

-3- (b) Appointment of Successor Trustee by Trustee. At any time after qualifying as trustee, any trustee may appoint a successor trustee to act in his place, either immediately or in the future upon any stated contingency, and may thereby supplement the provisions of subparagraph (a). (c) Appointment of Successor Trustee by Beneficiaries. If at any time there is no trustee acting and none has been appointed, a majority of the beneficiaries (acting through the beneficiary's natural or legal guardian or legal representative, in the case of a beneficiary under a legal disability) who might then be entitled to receive a distribution from the trust estate shall appoint a successor trustee. (d) Appointment of Co-Trustee. The trustee (acting unanimously if more than one) may appoint one or more co-trustees. (e) Who May Be Appointed. A successor trustee or co-trustee may be any individual, bank or trust company and may be domiciled anywhere. (f) Procedure for Appointment. Appointment shall be made by written instrument filed with the trust records. Any such appointment may be changed or revoked prior to the date it becomes effective. Any such appointment may be limited in any manner deemed advisable by the person making the appointment, including, for example, restricting the power over distributions as necessary to avoid the imposition of any tax upon the trust, the appointee or the appointee's estate. D-2. Resignation of Trustee. A trustee may resign from a trust without the necessity of any court proceeding upon meeting these conditions: (a) Notice. At least 30 days' written notice (if not waived) shall be given to each beneficiary who might then be entitled to receive a distribution from the trust estate. If a beneficiary is under a legal disability, notice shall be given to (or waived by) the beneficiary's natural or legal guardian. (b) Accounting. If and to the extent required by the successor trustee, an accounting for the administration of the trust shall be given to the successor trustee. The successor trustee shall be fully protected in relying upon such accounting. D-3. Rights and Liabilities.

(a) Bond Not Required. No bond or other security shall be required of any trustee.

-4- favor of the validity of any act by or omission of any trustee. A trustee shall not be liable for any act or omission except in the case of gross negligence, bad faith or fraud. Specifically, in assessing the propriety of any investment of a trust estate, the overall performance of the entire trust estate shall be taken into account.

(c) Compensation. Each trustee shall be entitled to receive reasonable compensation for services actually rendered to a trust.

E-1. General Powers of Trustee. To carry out the trust purposes but subject to any limitations stated elsewhere herein, the trustee of each trust shall have the following powers, which may be exercised free from court supervision, and which shall exist until all of the trust estate has been distributed:

(a) Trust Estate. The trustee may invest and reinvest all or any part of the trust estate in property of any description and may retain as a part of the trust estate any property acquired at any time and in any manner. Specifically, and without regard to the provisions of any applicable state law, the trustee may retain, or invest and reinvest in, property unproductive of income, shares of open or closed end investment trusts or companies, wasting assets, and any other property, regardless of location and without regard to any requirement of diversification as to kind or amount.

(b) Business Interests. The trustee may continue operation of any business entity, in any business form, with all or any part of the trust estate, and may reorganize or liquidate any such entity at any time.

(c) Transfers, Loans. The trustee may lease, sell, transfer, or encumber in any manner {including with purchase money mortgages) all or any part of the trust estate, and may loan or borrow money in any manner {including by joint and several obligations) with or without security. Subject to the provisions of Paragraph E-3{a), the trustee may purchase assets from the estate of a trustor and may loan funds to the estate of a trustor at such rate of interest and with such security as the trustee determines to be in the best interests of the current beneficiaries of the trust.

{d) Dealings With Related Parties. The trustee may deal with any person or entity regardless of any relationship or identity of any trustee to or with that person or entity and may hold or invest all or any part of the trust estate in common or undivided interests with that person or entity.

(e) Agents, Employees. The trustee may employ and compensate agents and other employees ~nd may delegate to them any and all discretions and powers.

-5- (f) Partitions, Distributions. The trustee may partition all or any part of any interest, may pay and receive such moneys or properties as may be necessary to equalize differences, and in so doing (i) may make any distribution of all or any part of the trust estate in any manner (including composing shares differently) and (ii) may evaluate any property, which valuation shall be binding on all beneficiaries. (g) Claims, Controversies. The trustee may maintain and defend any claim or controversy by or against the trust without the joinder or consent of any beneficiary. (h) Additional Powers. In addition, the trustee shall have all rights, privileges and powers now or hereafter granted to trustees in Texas, including those granted under the Texas Trust Code. Any subsequent legislation or regulation expanding or limiting the rights, privileges and powers granted a trustee shall apply to all trusts hereunder unless the trustee elects not to have such legislation or regulation apply to a particular trust by a written instrument filed with the trust records. However, the provisions made for the various beneficiaries under this trust agreement are exclusive. Any statute that purports to enlarge the class of beneficiaries to whom distributions may be made or the purposes for which distributions may be made shall not apply to any trust. All trust powers may be exercised upon such terms as the trustee deems advisable and may affect trust properties for any length of time regardless of the duration of the trust. Generally, and subject only to the terms of this trust agreement, the trustee shall hold, manage, control, use, invest, reinvest, and dispose of the trust estate to the same extent as if the trustee were the fee simple owner thereof. E-2. Principal and Income Determinations. The receipts, disbursements and reserves of each trust may be allocated, on a cash or accrual basis, between principal and income in the trustee's discretion without regard to the provisions of any statute. To the extent the trustee does not exercise this discretionary power, the provisions of the Texas Trust Code shall control. E-3. Restrictions on the Exercise of Certain Powers. (a) Dealings with Trust Estate. No power granted the trustee shall be construed to enable any person to purchase, exchange, or otherwise deal with or dispose of any trust estate for less than an adequate consideration in money or money's worth or to authorize loans to any person without adequate interest. No part of any trust estate may be (i) loaned to a trustor or to any spouse of a trustor or (ii) applied to the payment of premiums on policies of insurance on the life of a trustor or on the life of any spouse of a trustor.

-6- (b) Distributions to or for Trustee. Any power to make discretionary distributions to or for the benefit of a person who is serving as trustee of a trust (including distributions to the person's spouse and distributions in discharge of any legal obligation of the person) shall be exercisable solely by the trustee or trustees other than that person. If no other trustee is then serving, such power shall not be exercisable.

E-4. Release and Delegations of Powers. Any power granted to a trustee may be released, in whole or in part, temporarily or permanently. Except as provided in Paragraph E-3, any such power may be delegated, in whole or in part, temporarily or permanently, to any other trustee then acting. A release or delegation shall be by written instrument filed with the records of each trust to which the release or delegation applies. F. DEFINITIONS AND GENERAL PROVISIONS F-1. Trust Estate. "Trust estate" means all assets, however and whenever acquired (including income and accumulated income), which may belong to a trust at any given time.

F-2. Descendants. "Descendants" means the legitimate children of the person or persons designated and the legitimate lineal descendants of such children, and includes any person adopted before becoming age 18 and the adopted person's descendants. A posthumous child shall be considered as living at the death of his parent. Whenever a distribution is to be made to the descendants of any person, the property to be distributed shall be divided into as many equal shares as there are living children of the person and deceased children of the person who left descendants who are then living. Each living child shall take one share and the share of each deceased child shall be divided among his then living descendants in the same manner. "Trusters' descendants" includes only those persons descended from both trusters. F-3. Heirs. Any distribution to be made to the "heirs" of a person shall be made to the individuals who would have inherited the person's personal property if the person had died intestate at the time the distribution is to be made, domiciled in Texas and not married, under the laws of Texas in force on the effective date of this trust agreement, with the shares of taking determined by those laws. However, both trusters and any spouse of a trustor shall be deemed to have died prior to the time that any such distribution is to be made. A distribution to "trusters' heirs" shall be made to the heirs of Andy I. Weiner. F-4. Internal Revenue Code. "Internal Revenue Code" means the Internal Revenue Code of 1986, as amended, or corresponding provisions of any subsequent federal tax laws.

-7- F-5. Other Terms. The use of any gender includes the other genders, and the use of either the singular or the plural includes the other. F-6. Spendthrift Provision. No beneficiary shall have the power to anticipate, encumber, or transfer his interest in any trust estate in any manner. No part of any trust estate shall be liable for or charged with any debts, contracts, liabilities or torts of a beneficiary or subject to seizure or other process by any creditor of a beneficiary. Nothing in this paragraph shall be construed to limit the otherwise valid exercise of a power of appointment or right of withdrawal given by this trust agreement.

F-7. Texas Law Applies. The situs of the trusts established under this trust agreement is Texas. Wherever possible, the laws of Texas shall apply to the construction, administration and validity of each trust. F-8. Maximum Term of Trusts. No trust shall continue for a period longer than 21 years after the death of the last to die of trustors and all of trustors' descendants who are living on the effective date of this trust agreement. Any trust still in force at the end of such period shall terminate, and the trust estate shall be distributed to the beneficiary for whom the trust was established. F-9. Powers of Appointment Exercisable by Beneficiaries. In exercising a power of appointment given to a beneficiary by this trust agreement, the beneficiary may appoint the property subject to the power outright to the appointee, in trust, or to a custodian for the appointee under the Uniform Gifts to Minors Act of any state. If the beneficiary appoints to a custodian, he may select the custodian. If the beneficiary appoints in trust, he may select the trustee or trustees, may establish such administrative terms for the trust as he deems appropriate, and may impose lawful spendthrift restrictions. He may give the trustee discretionary powers over the income and principal, and may create a trust that has several permissible distributees. He may create life interests or other limited interests in some appointees with future interests in favor of other appointees, may appoint different types of interests among the appointees, and may create new powers of appointment in a trustee or trustees or in any appointee. He may impose lawful conditions on an appointment and,, in general, may appoint to or among the appointees in any lawful manner. In determining whether, in what manner and to what extent a testamentary power of appointment has been exercised by a beneficiary, the trustee may act in reliance upon a court order admitting an instrument to probate as the beneficiary's last will or an order finding that the beneficiary died intestate. Unless within six months after the beneficiary's death the trustee has actual notice of the existence of proceedings to probate a will of the beneficiary, the trustee shall assume that the beneficiary died -8- intestate. The foregoing provisions are intended to expedite the prompt and efficient administration of the trust and to protect the trustee from any action taken or distribution made in accordance with these provisions. Nothing in this paragraph shall limit or qualify any power of appointment given by this trust agreement or any right which an appointee or taker in default of appointment may have against any person receiving a distribution from the trustee irrespective of the place of probate or of the time of discovery of a will exercising the power or any other action taken in the beneficiary's estate.

By signing this trust agreement, the trustee (i) accepts these trusts and all of the rights, powers and duties attached to the office of trustee as provided herein, (ii) agrees to serve as trustee of the Daniel Steven Weiner 1996 Trust and of any Contingent Trusts which may be established under this trust agreement, (iii) acknowledges receipt of the property described in Attachment A, and (iv) agrees to hold and administer each trust estate in accordance with the terms of this trust agreement. This trust agreement is executed effective as of the 20th day of March, 1996.

-9- ATTACHMENT A: INITIAL CONTRIBUTIONS TO THE DANIEL STEVEN WEINER 1996 TRUST

Katherine Friedman Weiner, Trustor and Trustee 3559 :painsc\0157136

-10- FILED 10/24/201410:21:50AM Stan Stanart County Clerk Harris County

PROBATE COURT 4 NO. 425,577

INRE: § IN PROBATE COURT § DAVID ABRAHAM WEINER § NUMBER FOUR (4) OF § 1994 TRUST § HARRIS COUNTY, TEXAS

ANDY WEINER'S SECOND AMENDED CROSS-CLAIMS AGAINST KATHERINE WARREN F/K/A KATHERINE WEINER

Andy Weiner ("Mr. Weiner") files the following Second Amended Cross-Claim Against

Katherine F. Warren f/k/a Katherine Weiner ("Ms. Warren"), and, in support thereof,

respectfully shows the following:

1. Mr. Weiner and Ms. Warren are co-trustees of the David Abraham Weiner 1994 Trust

("David's Trust"). Mr. Weiner and Ms. Warren are likewise co-trustees of the Daniel Stephen

Weiner 1996 Trust ("Daniel's Trust"). As such, Mr. Weiner and Ms. Warren are jointly

responsible for the administration and liabilities of David's Trust and Daniel's Trust

(collectively, the "Trusts"), if any.

2. Accordingly, Mr. Weiner files the following cross-claims against Ms. Warren:

a. Contribution; b. Breaches of Fiduciary Duty; c. Removal of Trustee; and d. Tortious Interference with Administration.

3. On December 13, 1994, Mr. Weiner and Ms. Warren established David's Trust for the

benefit of their then-minor son, David. See David Abraham Weiner 1994 Trust agreement,

EXHIBIT exhibitsticker.com 092865/000002 376 -1273851vl TAB M attached hereto as Exhibit A and incorporated by this reference. The irrevocable trust agreement

provides that David is the primary beneficiary and Mr. Weiner and Ms. Warren are the co-

trustees.

4. On March 11, 1996, Mr. Weiner and Ms. Warren established Daniel's Trust for the

benefit of their then-minor son, Daniel S. Weiner ("Daniel"). See Daniel Steven Weiner 1996

Trust, attached hereto as Exhibit B and incorporated by this reference. The irrevocable trust

agreement provides that Daniel is the primary beneficiary and Mr. Weiner and Ms. Warren are

the original co-trustees. Exhibit B.

5. Both David's Trust agreement and Daniel's Trust agreement specifically provide that:

a. Ms. Warren and Mr. Weiner are to act jointly as co-trustees; b. A trustee shall not be held liable for any act or omission, except in the case of gross negligence, bad faith or fraud; and c. The overall performance of the Trust shall be taken into account when assessing the propriety of any investment of the Trust.

See Exhibits A and B.

6. Additionally, the agreements of the Trusts grant Ms. Warren and Mr. Weiner, as co- 1 trustees of the Trusts, the general powers to: (i) invest and reinvest the Trust assets ; (ii) lease,

sell, transfer or encumber, in any manner, all or any part of the Trust 2 ; and (iii) loan or borrow

money from the Trust, in any manner. 3

7. Ms. Warren and David's original lawsuit, filed solely against Mr. Weiner, sought an

order from this Court to either distribute David's Trust funds to David free of trust or,

alternatively, to award Ms. Warren sole and exclusive control over a new account (a Uniform

Transfers to Minors Act account created for David's benefit), even though the Trust agreement

1 Exhibit A§ E-l(a); Exhibit B § E-l(a). 2 Exhibit A§ E-l(c); Exhibit B § E·l(a). 3 Exhibit A§ E-l(c); Exhibit B § E-l(a).

2 092865/000002 376- 127385lvl and the Divorce Decree provide otherwise. In the original Petition, Ms. Warren and David stated

that Ms. Warren would submit an accounting and sought her discharge from any liabilities

relating to the Trust.

8. Since originally filed, counsel for Ms. Warren and David has filed an amended petition

that now names only David as the Petitioner, ·and Mr. Weiner and Ms. Warren as Respondents.

In the amended petition, David instead sought to be his own trustee.

9. David testified in his partial deposition that he is not aware of any breaches of trust by

either Mr. Weiner or Ms. Warren. Irrespective of this testimony under oath, David filed yet

another amended petition asserting various claims solely against Mr. Weiner, even though both

Mr. Weiner and Ms. Warren have served as co-trustees since the inception of David's Trust.

10. Since the filing of David's second amended petition, Daniel, David's younger brother, 4 filed an original petition in intervention in this proceeding.

II. As co-trustees of the Trust, Mr. Weiner and Ms. Warren are jointly responsible for the

administration of the Trust. Accordingly, in the event damages are assessed against Mr. Weiner

due to his role as co-trustee of David's Trust and/or Daniel's Trust, Ms. Warren is responsible

for 50% of those damages, in addition to 50% of Mr. Weiner's attorneys' fees and costs incurred

in defending this action.

III. Cross-Claims Against Katherine Warren

12. Mr. Weiner incorporates by reference the factual allegations contained within the

preceding Paragraphs 1 through 11.

4 Mr. Weiner does not concede that Daniel has standing to bring any claims against Mr. Weiner in this proceeding nor does Mr. Weiner agree with Daniel's alleged legal basis to intervene in the above-referenced proceeding.

3 092865/000002 376- 127385lvl A. Cross-Claim for Contribution.

13. In David's Second Amended Petition, he seeks to hold Mr. Weiner liable for breaches of

fiduciary duty in his capacity as David's Trust. See Second Amended Petition at ~14, on file

with this Court.

14. Likewise, in Daniel's Petition in Intervention, Daniel seeks to hold Mr. Weiner liable for

breaches of fiduciary duty in his capacity as co-trustee of Daniel's Trust. See Petition in

Intervention at ~34, on file with this Court.

15. It is undisputed that Mr. Weiner and Ms. Warren were named as initial co-trustees of

both David's Trust and Daniel's Trust. Pursuant to Texas Property (Trust) Code, co-trustees are

to act jointly in administering the Trust. TEX. PROP. CODE § 113.085. Ms. Warren has failed to

jointly administer the Trusts with Mr. Weiner.

16. Further, Ms. Warren has failed to delegate her powers or duties as co-trustee of the Trusts

to Mr. Weiner. Pursuant to Texas Property (Trust) Code Section 113.085(c):

(c) A co-trustee shall participate in the performance of a trustee's function unless the co-trustee: ( 1) is unavailable to perform the function because of absence, illness, disqualification under other law, or other temporary incapacity; or (2) has delegated the performance of the function to another trustee in accordance with the terms of the trust or applicable law, has communicated the delegation to all other co-trustees, and has filed the delegation in the records of the trust.

TEX. PROP. CODE§ 113.085 (c) (emphasis added).

17. And, the Trusts expressly provide that a co-trustee may only release or delegate her

powers as follows:

E-4. Release and Delegations of Powers. Any power granted to a trustee may be released, in whole or in part, temporarily or permanently. Except as provided in Paragraph E-3, any such power may be delegated, in whole or in part, temporarily or permanently, to any other trustee then acting. A

4 092865/000002 376- 127385Jvl 1:0 release or delegation shall be by written instrument filed with the records of each trust to which the release or delegation applies.

See Exhibit A § E-4 (emphasis added); Exhibit B § E-4 (emphasis added).

18. Ms. Warren never communicated any intent to delegate her co-trustee duties to Mr.

Weiner nor has she filed a written instrument delegating or releasing any powers to Mr. Weiner,

as required by the terms of the Trusts. In short, there is no evidence that Ms. Warren has

delegated the performance of her co-trustee functions to Mr. Weiner. TEX. PROP. CODE §

113.085(c)(2).

19. Mr. Weiner seeks to hold Ms. Warren responsible for 50% of any liabilities assessed

against the Trusts and/or him relating to the actions sought by any beneficiary, including, but not

limited to, holding Ms. Warren liable for 50% of the attorneys' fees, accountant fees, and costs

incurred by Mr. Weiner as a result ofthe above-referenced litigation.

20. Thus, pursuant to Section 33.016 of the Texas Civil Practice & Remedies Code, Mr.

Weiner asserts a contribution claim against Ms. Warren for any liability that may be imposed on

him pursuant to the breach of fiduciary duty claims brought by David and/or Daniel in the instant

litigation.

B. Cross-Claim for Breaches of Fiduciary Duty.

21. Ms. Warren, as co-trustee, serves in various fiduciary capacities for David and Daniel.

Trustees are held to a "very high and very strict standard of conduct which equity demands".

Slay v. Burnett's Trust, 187 S.W.2d 377,387-88 (Tex. 1945).

22. _ As a fiduciary and co-trustee of the Trusts, Ms. Warren has breached the following

a. Duty of loyalty; b. Duty of competence; c. Duty of competence by failing to administer the Trusts pursuant to their terms;

5 092865/000002 376- 1273851v1 d. Duty of full disclosure; e. Duty to act with integrity of the strictest kind; f. Duty to act with due diligence; g. Duty to exercise reasonable discretion; and h. Duty to act as a reasonably prudent person.

23. Ms. Warren breached her fiduciary duties, which resulted in injury.

24. Thus, in accordance with recognized principles of fiduciary law, Mr. Weiner seeks an

award of actual damages and, since Ms. Warren's conduct was intentional, punitive damages.

c. Cross-Claim for the Removal of Ms. Warren as Trustee.

25. Ms. Warren, through her hostile actions and position of influence, has turned both Daniel

and David against their father, Mr. Weiner. Despite Mr. Weiner's valiant attempts, Ms. Warren

has failed and refused to engage with Mr. Weiner to administer the Trusts.

26. By these acts, Ms. Warren has created a hostile environment for David, Daniel and Mr.

27. Accordingly, Mr. Weiner files this cross-claim for the removal of Ms. Warren as trustee

of the Trusts.

D. Cross-Claim for Tortious Interference with Administration.

28. Through her actions, Ms. Warren has tortiously interfered with Mr. Weiner's ability to

properly administer the Trusts. Ms. Warren has interfered with the administration of the Trusts

by initiating unnecessary litigious proceedings against Mr. Weiner, by and through David and

Daniel, and continuously failing to act in the best interests of David and Daniel, to the detriment

ofMr. Weiner.

29. Such acts have proximately caused and prevented and interfered with the ability of Mr.

Weiner to properly administer Decedent's Estate.

6 092865/000002 376- 1273851vl .. 30. Ms. Warren's acts have resulted in the incurrence of unnecessary expenses, damages or

loss to the Trusts, for which recovery from her is proper in an amount within the jurisdictional c~.o limits of the Court.

31. Mr. Weiner seeks actual and punitive damages for Ms. Warren's tortious interference with

administration and for her intentional and malicious conduct.

IV. Damages and Other Relief Requested

32. Mr. Weiner re-alleges and incorporates by reference the foregoing background

allegations and causes of action in support of the damages sought below.

A. Actual Damages.

33. Based on the acts and occurrences set forth in the preceding paragraphs, Ms. Warren

breached her fiduciary duties, proximately causing significant loss to the Trusts and actual

damages to the Trusts.

34. As a result of Ms. Warren's breaches of fiduciary duties, tortious interference with

administration, and bad acts constituting her removal as trustee of the Trusts, which were the

proximate cause of damages to Mr. Weiner and the Trusts, Mr. Weiner is entitled to damages

from Ms. Warren.

B. Punitive Damages.

35. As a result of Ms. Warren's intentional and willful breaches of fiduciary duty and tortious

interference with administration, Mr. Weiner seeks punitive damages from Ms. Warren.

C. Additional Relief Sought.

36. Mr. Weiner is entitled to pre-judgment and post-judgment interest and costs of court in

all amounts awarded hereunder as allowed by law. He specifically sues for recovery of pre-

judgment and post-judgment interest and recovery of costs of court under the applicable

7 092865/000002 376- 1273851v1 provisions ofthe laws ofthe State ofTexas.

37. With regard to claims by David and/or related to David's Trust, Mr. Weiner, individually

and as co-trustee, respectfully requests the following relief:

a. To the extent of any claims of David, Ms. Warren shall be held responsible for all actions and alleged inactions of the trustees;

I '\1' b. To the extent of any claims of David, Ms. Warren shall be held equally liable for all claimed damages and relief sought by David, as finally determined, if any;

c. Ms. Warren shall be held liable for any and all violations of David's Trust agreement, including any plan or scheme to collude with David;

d. Ms. Warren shall be held equally responsible for the preparation and submission of any accounting determined to be due and personally bear one-half of the costs of the accounting pursuant to § 113.151 of the Texas Trust Code; and

e. Ms. Warren shall be ordered to pay one-half of Mr. Weiner's attorneys' fees and costs incurred as a result of defending the lawsuit.

38. With regard to claims by Daniel and/or related to Daniel's Trust, Mr. Weiner,

individually and as co-trustee, respectfully requests the following relief:

a. To the extent any claims of Daniel are validly asserted in this proceeding, Ms. Warren shall be held responsible for all actions and alleged inactions of the trustees;

b. To the extent any claims of Daniel are validly asserted in this proceeding, Ms. Warren shall be held equally liable for all claimed damages and relief sought by Daniel, as finally determined, if any;

c. Ms. Warren shall be held liable for any and all violations of Daniel's Trust agreement, including any plan or scheme to collude with Daniel;

d. Ms. Warren shall be held equally responsible for the preparation and submission of any accounting determined to be due, and personally bear one-half of the costs ofthe accounting pursuant to §113.151 ofthe Texas Trust Code; and

e. Ms. Warren shall be ordered to pay one-half of Mr. Weiner's attorneys' fees and costs incurred as a result of defending the lawsuit.

8 092865/000002 376- 127385lvl WHEREFORE, Andy Weiner respectfully requests that this Court grant the above-

requested relief, and for such other and further relief as to which he may show himself justly

entitled to receive.

By: Is/ Kathleen Tanner Beduze SARAH PATEL PACHECO (TBA # 00788164) KATHLEEN TANNER BEDUZE (TBA # 24052205) 1401 McKinney, 1ih Floor Houston, Texas 770 I 0 (713) 658-2323 (713) 658-192I (Facsimile)

I hereby certify that a true and correct copy of the foregoing instrument has been forwarded to:

Carol A. Cantrell Thomas R. Conner Cantrell & Cowan, PLLC Conner & Lindamood, P.C. 3700 Buffalo Speedway, Suite 520 1221 Lamar, Suite I 010 Houston, Texas 77098 Houston, Texas 770 I 0 Facsimile: (713) 333-0550 Facsimile: (7I3) 654-8I 15

bye-file and/or facsimile on the 24th day of October, 2014.

Is/ Kathleen Tanner Beduze KATHLEEN TANNER BEDUZE

9 092865/000002 376- 127385Jvl 'i:4' ·• LO ~:~ i~~ i 1 ~i ~llli~::~

!'11110::! ~;::1:1~

i~r I',,)) ""· r~~~~~~ ~~:~:{

~;~· DAVID ABIWWf WEINBR 1994 TRUS'l' ~~~

(~) By this trust &~Jreeaent, Ancty I. Weiner and Katherine Friacbllan Weiner, husband. aDd wfte, both Qf Rarria county, Texas, 'as i:~ 11 truatora,• establish the David Abrahllll Weiner 1994 Trust tor the !''"·•, l:len'efit of their son, David Abralla• Weiner ("David•). Tz:usto:t'S ~\i grant, aseiCJ11 and cleliver to· Andy I. We,l.ner and Katherine FrieC!It4n ~, .,,! Weiner; both ot Harris county, Texae, aa ntrusteoa,• the property ("; ~~~~ described. in Attacbaent A.. Attactuaent A, which ia captione\\ :j "Initia~ Contributions to tbe David Abr.,halll Wei,nar 1994 'l'rust, '' is incorporated by reference as a pa%t of this trust a~eemen~. i~~.ll~l

N c This truet agrea111ent and the trusts e1tabliahed by it are c... irrevocable. No person shall have the right to revoke or amend this trust aqrae.ent or any of ita provisions. However, ptoperty acceptable to the trustee may be added to any trust from time to tt.e in the future by,truators or by any other person (including aclclitiona pursuant to the prcrvialons of tha last will of any person). · All references to "trustee" shall ~tar to the parson or persons then acting as aucb.

A. PanwtY 'J'ROST

A-1. giatdhutigng. The inCOIIe. of the trust lllllY be acCNIIIulatecl and ratalned, in whole or in part, or tha trustee 111ay ~1atr1bute to David, from tilD6 to tine, so much or all of tha trust ••~ate as, in tbe trustee'& discretion, is in David's beat interests.

A-2. Termination. David may withdraw any part or all of the tru'st estate within 60 days after he l:leccmas age 21, and may thereby terminate th~ trust as t~ the part withdrawn. EXercise of this withdrawal right ohall bfi by one or liore written insl::rlilaenta delivered to the trustee within ~he 60-cl~y period. It or' to the extent that Davie! does not exercise this withdrawal riqht, the trust shall continue until David becomes age 30 or dies before that aqe, at whidh.time tbe trust estate sball be distributed:

(a) To David. (b) If David is not~~en liying: to such one or more persons, corporations or organi1at1ons (includi~David's estate), as ·Davi~

EXHIBIT A appoints by a Will which specifically raters to this power ot appointment. lf or to the extant that David does not effectively exercise this power of appolnt1Dant, the tnst estate shall be diatr~l1Ute4:

(1) To David's deaoendanta. (2) lf nona of Davlc!'a descendants ia than living, to trusters ' clascendante. (3) If none of truatora' descendants ia then living, to trustor&' heirs.

A-3 • P!vaaot of '1'1¥11• It David's will contains no contrary direct:ons, tbe tnatee shall pay troa·tbe trust estate the entire increment in taxes payable by reason of David's death (including any interest or penalties thereon) to the extant (if any) that the total of such taxes is vreater than would have bean iapoead if no portion of tho trust estate vera taken into account in datermininv such taxes.

B, CON'l'XBGEH'l' TRUSTS

B-1. 'l'£Usts Bstablisbad, Any portion of a trust estate upon the trust's teminat~on (other tban a portion withdrawn by David pursuant ~ Paraqraph l-2) whicb would be distributable to a beneficiary who is under ago 30 or to a beneficia~ who ie under a legal diaability instead shall be distributed to the trustee of a contingent Trust (unless otherwise directed by the vali4 exercise ot a power of appointment). Each beneficiary'• portion eo distributed shall be held and administered as the initial t~ot estate ot a separate trust tor ~· beneficiary. ·However, if a Contingent Truat ia already in a¥iatence tor that beneficiary, any additional portion to be distributed to the trustee of a Contingent 'l':t'\l&t tor the benaticiary shall be acldad to tho trust estate of the ex1stin9 contingent Trust •

.8-2. ~ist;ibutlona, The inc0111e of each contingent Trust may be accumulated and retained, in whole or in part, or the trustee may distribute to the beneficiary for whom the trust was established, from time to time, so mucb or all. of the trust estate ae, in the trustee's discretion, is in the beneficiary's best interests.

B-3. Tftrmination• Eecb Contingent Trust shall terminate when the beneficiary for whom the trust was established has beco•• aqe 30

-:z- and is under no leqal disability or upon tho benoficia~'a earlier death. Opon .termination, tho tru~t estate shall be distributed: (a) To the beneficiary. (b) If the beneficiary is not than livinq, to sucb one or mora persona, oorpo-rationa or orvanlzatlona aa tba beneficiary appointe by a will which apeaiflaalli refers to this power of appointment. If none of the benaUc ary'a cleacendants is then living, this power may not be exercised in favor or the ... banetioiary, the benaticiary'a aatate, the beneficiary's creditors or the creditors of the beneficiary's estate. It or to the extent ' (\; that the beneficiary does not effectively exercise tbis power or appointment, the trust estate shall be distributed: (l) To the beneficiary's descendants. (2) If nona of the beneficiary's cleacendanta is then livinq, to the descendants of the beneficiary's nearest ancestor who was one of truatora' deacandant$ and who haa descendants then living. (J) It none ot these persona is then Uvinq, to trustor&' descendants. (4) If none of trustor~' descendants is then living, to trusto:rs' bel.ra.

C, DISTRIBU'l'IONS

C-1. plat£ibftipnP tR qr for Banafigiariaa. OU:ring the tara of a trust, any dstri.bution to be made to a banatioiary t:roa the t:ruat may be 'ID&de (1} to the beneficiary, (11) if the benefioia:ry ia unda:r a :Laqal disability or 1! the trustee·· determines tbat, the beneticla:ry ie unable to properly· manage bia affaire, to a person furnbbinq support, aaintenance or education tor the beneficiary or with 1o1h011 tbe beneficiary ia residinCJ, for expancUtu:ra on the benetic1ary'a behalf, or (111) to a custodian for a mino~ beneficiary, as selected by the trustee, under the Uniform Gifts to Minors Act of any state. Alternatively, the trustee aay otherwise apply all o:r a part of the distribution tor the benaticiary'a bena.tit. Ho1o1ever, no such dietribUtion shall be made to a trustor, to any spouse of a trustor, or in any manner that disch•rges a leqal obligation (including an oblivation of suppor~) of a t:rusto:r or any. spouse of a trustor. AnY .distribution under -this paragraph shall be a full discharge of the trustee with :respect thereto.-

; •· -:J- C-2. p11t Interflt! of 8enafic1an, In lllakinq distributions in the "best interests• of a beneficiary, tbe txuetee aay consider the aqe or tbe beneficiary, the coats of the beneficiary'• aupport, lll&ihtenanca, ecluc:ation ani! c0111tort without regard to any other resource• available to the benlfficiary tor thaae P\UPO&ea, the effect or any cU.atribution upon the incoaa and tranater tax liability of the beneficiary or of the truat, enl1 any other tactora deemed relevant by the trustee,

O. OFFICE OP TRUSTEE D-1. gucseasgr 'l'ruatee. Cp-Trvstee, The following provisions shall apply to each separate truat established under this trust agreamontt · (a) guc;:caupr Trustee, Should Andy I. Wainer or Xathadrie Friedman Weiner cease to act as truataa, for any reason, the one reaaining ahall continue to act ea trustee. Should both. Andy I. Wainer and Xttharine Friea.an Wainer cease to oct as trustees, for any reason, tn1atora appoint Bayle Wainer Drubel as successor trustee. (b) Appointmtnl; pt suc;gegor rryatt• by Trn•tr•· At any time after qualify1n9 as trustee, any trustee may appo nt a successor trustee to'act ln his place, either i~ediately or in the ruture upon any stated continqenoy, and aoy thereby euppleaent the provisions of aUbparagreph (a). (c) 6J)ppintmant of suqugsgr Tr»Dt•• bll Benofigiariaa. I f at any time there is no trustee actin~ and none bas been appoint~d, a majority of the benef1o1ades (acting through the llenefialary's natural or legal guordian or leqal repreaentative, in the case of a beneficiary under a legal disability) who might then ba entitled to receive a distribution from the trust estate shall appoint a successor trustee. (d) AppginQ!ent pC Co-Trustee, The trustee (ectinq unanimoualy if more than one) may appoint one or more co-trustees. (e) lfbo Kay Be Apppint;ed. A successor tru•tee or co-trustee may be any individual, bank or trust company and may be domioilea anywhere. However, neither a trustor aor any spouse Df a trustor may be appointed ae trustee. (f) ngepdU[B for Appoint;mant;. Appointment shall be ude by written instrument filed with the trust records. Any such appointment ••Y be changed or nvoJced prior to tbe date it becooa effective. Any such appointment •ay be limited in any manner daeaed advisable by the person making the appointment, includinq,

-4- tor exuple., restricting the power over diatri:butiona aa neoeeaary to avoid the 1JDpO&it1cn of any tax upon the tn.et, the BFpointee or the appointee'& estate. 0 (,\) D-2. Raaiqnation of Trustee, A trustee may reaiqn fro~ a trust ·. . without the naoees ty of eny court proceeding upon meeting theaa r ·:~

conditional (a) ~. At least 30 daya• written notice (if not waived) shall be given to each beneficiary Wbo might then be entitled to receive a diatribution troa the ~rust estate. rt a banefiolary !a unde~ a legal disability, notioa eball be given to (or waived by) the baneficiary•a natural or laqal guardian. (b) . Accountinq, t f and to the extent required by tba successor trustee an acoovntinq tor tba adlllinistration ot the trust aball be given to the auocesaor 1:%ustaa. The suoceseor trustee shall be tully protected in relying upon aucb accounting.

D-3. Rights and Liabilities, (a) 1pn4 Not Required. Ho b0n4 or other security shall be required ot any trustee. (b) Liahilities. This aqrae111ent shall always be construed in favor of the validity of any act by or OJIJ.aeion ot any trustee, A trustee shall not be liable tor any aot or omission exospt in the case of vroee neliJlige.nca, .bact faith or traucl. specifically, in assessing the propriety of any investment of a trust estate, the overall performance of the entire trust estate shall be taken into account~

(o) epmqgnsatiqp. laah trustee ahall be entitled to receive reasonable compensation for services actually rendered to a trust.

£, ADMINISTRATION 2•1, Ganaril Ppwarg pf TXu&tte, To carry out the trust purposes, but subject to any limitations stated aleeware herein, the trustee ot each trust sball havs tbe rolloving pavers, wbich uy be exeroiaed free from court aupervision, and which shall exist until all of the truat estate bas been distributed: (a) :l:ru•t lqJ;.ata, The trustee NY invest and reLnvaet all· or any part of the trust estate in property of any daso.ri;pticm and may retain as a part of tba trust estate any ~roperty acquired at any time and in any manner. Specifically, and without regard.~o the

-5- ·proviaions of any applicable state law, ths t~atea .ay retain, or invest and reinvest in, property unproductiva of income, ebarae of open or cloaad and invaatmant t~ta or ca.paniae, wasting aaaate, and any otbar property, regardless of location and without regard to any requirement of divarslfication as to kind or amount. (b) Buainaaa Xptaraata, The t~stea may continue operation of any bueinaea entity, in any business for., with all or any part of the t~at estate, and may reo;1:9anhe or liquidate any such entity at any time. (o) Transfers. Leana. The trustee uy lease, sell, transfer, or encumber in any 11anner (includ.tnv with purcbaea 111oney aortvavea) all or any part of the t~st estate, and aay loan or borrow money in any aanner (includlnt by joint and a.veral obl1qat1one) w1tb or without eecurity. Subject to the provisions of Paragraph E-J(a), the t~stee aay purchase assets froa the estate of a trustor and may loan funds to the estate of a truator at such rata of interest and with such security ae the ~stee deter111inea to be in the beet interests of the current beneficiariee of the t~et, (d) Dealinqa With Balata4 Part:l.ea, The trustee uy deal with any peraon or entity reqardleaa of any relationship or identity of any t~stoe to or with that peraon or e~tity and may bold or invest all or any part ot the trust estate in common or undivided interest& with that parson or entity. (e) Agents. E:mployeea, 'l'he trustee may employ and compensate aqents and other eaployaea and may delegate to them any and all discret1onu and powers. (f) Partitigna. piatr!butigna, The trustee 111ay partition all or any part or any interest, may pay and receive auoh moneys or properties as may be naaeaaary to equalize ditferencea, and in so doing ( 1) may aaka any distribution of all or any part of tbe trust estate in any manner (including coaposinq shares difterently) and (ii) may evaluate any property, wllich valuation shall be binding on all beneficiariaa. (g) SUims. cgntJ>oyeraies, The trustee lllllY naintain and det:end any claim or controversy by or aqainat tha trust without t:be joinder or consent of any beneficiary. (h) Aaditipfal Peyara. In addition, the t~atee shall have all riqhts, privleqea and powers now or hereafter granted to t~steea in Texas, 1nclud1nt those granted under the Texas ~at Code. Any subsequent legislation or requlation expandinq or limiting the rights, privileges and powers qranted a trustee shall apply to all trusts hereunder unless the trustee elects not to bava such legislation or requlation apply to a particular t~at by a () ~''':u 1'1:11\ 'lmfll' l~'~: ~;r.~l

~~~

~:} ~:r en (;) written lnatrulllent filed with tba trust recorda. However, the j~~r provielons uade for the various beneficiaries under thia trust a;reuent are excluaive. Any atatu~a that pu.q10rta to enlarge the ~~·rn~ class of beneficiaries to whom distributions may ba made or the .. ~~:~~,,

~~::;~! purposes for which distributions may be made shall not apply to any trust. All trust povere may be exercised upon auoh teTaa as the (~\! trustee dee~~~e adviaule and 11ay afteot truat properties tor any r··,, lenqth of ti111e l'ega:rdleaa of the duration of the ti'U&t. Generally, and aubjeot only to the tei'DB of this trust agreement, the truateo ("'' .,\j ('l'j ehell hold, menage, control, usa, invest, reinvest, end diaposa of r::~) the truat estate to the aa111e extent as if tha trustee were the faa :;m~IJI c. simple owner thereof. ('~ ,.. c 1•2, f[inaipsl and rncope Deterninationa, The receipts, diabursenenta and reserves of each trust may ba allocated, on a 0 cash or acoruel basis, between principal and inoone in · tbe trustee's cSJ.aoretion without re;ard to the provisions of any statute. To the extent the trustee does not axeroiae this discretionary power, the proviaions of the Texas 7rust Coda shall oontrol.

E-3. Bastrictions pn th• Jxarqlaa gf Cartain pqwera. (a) Daglinqa yith Truat; 1191jata, No power granted tha trustee shall be constzuad to enable any person to purchase, exchanqa, or othe~isa deal witb or dispose of any trust estate for lea• than an adequate consideration in money or 111onay•a worth or to autborila loans to any person without adequate interest. No pal't of any trust estate may be (i) loaned to a trustor or to any spouea of a trustor or (li) applied to tba payment of premiums on policies of insuranc:e on the llfa of a trustor or on the life ot any spouse of a trustor. (b) piatributiong tg or fpr TrU•tga. Any power to mltlte discretionary distributions to or tor the benefit of a person who is serving as trustee of a trust (including distributions to tbe parson's spouse and distribUtions in discha~e ot any legal obligation of the person) shall be exercisable solely by tha trustee or trustees other than that person. If no other trustee 1a then serving, such power shall net be exercisable.

E-4 , Bglaase and Dalagatlgns gf Power&. AnY power granted to a trustee . .y be released, in whole or in part, temporarily or permane~tly. Except as provided in Paraqraph 1•3 1 any such power 111ay be delegated, in whole or in part, teaporarily or permanently, to any other trustee then actinq. A release or delegation shall be

-7- by written instrument Uled with the records ot each truet to whicb i~ the release or ~•legation applies.

F. DBPINITIONS AND CEHBRAL PROVISIONS r-1. Trust Batate. 11.Trust estate11 means all assets, however and Wbenever·acquired (inoludinv income and accumulated income), which may belong to a trust at any given time.

F-2. Deapqnaanta. uoeaoandants" means tbe legitimate children of the person or persona designated and the legitimate lineal desoendanta ot ailoh children 1 and inclu!Sea any person adopte4 betore becoming age 18 and the adopted person's deacandanta. A posthumous child shall ~• conJidered aa livi~q at the death pt bis parant, Whenever a distribution is to be ~ads to the descendants of any person, the property to be distributed shall be divided into ae many· equal shares as there a¥a livinv children ot the person and deceased children of tha person who left daacendanta who are tban livinq. Bacb_liv1nq child shall take one ahara and the share of eacb deceased child shall be divided a11ang his than living deacendanta in the same manner. llftUatora' descendants" include• only those persona descended from both trusters.

r-3, IIW.!• Any distribution to .be made to !:he "heirs" ot a person shall be made to the individuals who would have inherited the parson's personal property if the parson nad died intestate at the time the distribution ia to be made, dOIIioiled 1n Texas and not married, under the laws of ~xaa in torca on tba affective data of this trust agreement, with the ebarea of taking datanained by those laws. However, both trusters and any spouse ot a trustor aball be detllllad to have died pdor to the t:iH that any such diStribution is to be made. A distribution to •trusters• heirs" shall be made to the hairs of Andy I. Weiner.

r-4. Igtprnal Rayenua cQde, ''Internal Revenue Code" meana the Intlernal Revenue Code of 1!184S, ae a11ended, or corresponding provisions of any subsequent federal tax laws.

P-!5, Qthar Tams. The uae· of any gander .includes the o~er genders, and the use of either the sin9Ul&r or the pl~ral includes the other.

F-6. spendtbrd'.ft rrgyiaipn, No beneficiary _shall have the power to anticipate, anoumber, or transfer hie interest in any trust estate

-a- in any 11\aMer. No part of any trust estate shall be lial»le tor or cbarqed w11;.h any debt&, contracts, liabilitlea or torte ot a beneficiary or subject to seizure or other prooeae by any creditor of a beneficiary. Nothing in this paraqraph ahall be construed to limit the otherwise valid exercise ot a power of appoint.ent or riqht ot withdrawal qiven by this trust aqraement.

F-7. TJ!¥11 L&Y Applian, Tho altus ot the trusts established under this trust aqreuant ie '.rexaa. Whuever poseil:ll.a, the laws ot Texas shall apply to the construction, administration and validity of each trust.

:r-e. Maximum :ram of 'l"n!•tl. No t¥'\Jat shall continue for a period longer than 21 yura aftezo tbe death of the l.aat to die of truetora and all ot trusters' descendants who are living on the effective date of tbis trust agreeaent. Any trust still in force at the and of such period shall tandnate, and the trust estate shall be distributed to the beneficiary tor whom the trust was establiabad.

~9. • ~ exerois nt a power of appointmant given to a beneficiary by tbia trust aqreament, the beneficiary u.y appoint the property sU])ject to the power outright to the appointee, in trust, or to a cuetodisn for the appointee uncter the Unifol'll Gifts to Minors Act of any state. If the beneficiary appointe to a custodian, be may aaleat the custodian. If the beneficiary appointe in t.Z'UIIt, be III&Y aaleot the trustee or trustees, 111ay establish such administrative ter.s tor the trust· liB be deel'ls appropriate, and 11ay .llllpoaa lawtul spendthrift restrictions. Ra may give the trgstae discretionary powers over the income end principal, and nay create a trust that bas several permissible cUatributeea. He IIIBY create life interests or cthor limited interests in soaa appointeea with future interests in tavor of other appointees, 11ay appoint different typea of interests al'Gong the appointees, and ••Y create new powers of appointment in a trustee or trustees or in any appointee. Ka may impoaa lawful conditions on an appointment and, in qaneral, may appoint to or among the appointees in any lawfUl ~anner. In deter~~ininq whether~ .Ln what unnsr and to what extent 11 testamentary power of appointl'lant haa been exercised by a beneficiary, the truataa nay act in reliance upon a court order admitting an instruaent to probate as the banaficiar.f's last will or an order finding that the benatioiary died intestate. Unless within six 111ontlis attal' the benaUoiery's death the trustee baa actual notice of the exiatlnca of proceedin98 to probate a will o: the beneficiary, the trustee ahall assume that the banef1ciaey 41ed intestate. The foregoing provisions are intended to expeditelthe proapt and effiolent ad111lniatrat1on of the trust and to protect t'he trustee from anr action taken or distribution •ade in accordance with these prov aions. Nothing in tbia paragraph shall limit or quality any power of appointaant given by this tJ:Uat ap-euant or any rigbtwhich an appointee or taker·in default ot appointment aay have atainat any parson reoaivin; a distribution from the tJ:Uatae irrespective of the place of probata or of the time of diacovazy of a will axeroialng the powor or any othor action taken in tba benaticiary'a estate.

G, ACCEP'l'AlfCE BY TROSTU

By aiqning this trust agraelllant, the tnstee (1) accepts these trusts aftd all of the rights, powers and duties attached to the office of trustee as prov14ed herein, (11) aqreea to serve ae trustee of the David Abraham Mainer 1994 Truat and of any contingent Truata which may be astabliahad under thia truet agreement, (iii) acknowledqaa receipt of'tha property deacribed in Attac~ent A, and (iv) aqreoo to bold and administer each trust estate in aooordanoa with the teraa of this trust aqraament.

This trust aqroament ia executed affective as of the 1.L day of ~cc'1JSC , 1994.

~~w ~L!HaWe ft(..~~..:._ erne p;ediftan ner I

Trustor ana Trustee

-10- lY;t r~~~,u ,1wm 1•

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"\i' en :!': c~~ A'r'l'ACHMEN'l' A: INITIAL CON'I!RIBU't'IONS '1'0 'J'HE DAVID ABlWlAJf WEINER 1994 TRUS't' '"\I' ~~~11,

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f:\J $20,000 !'······ t'•,,j () ~:r.n:

tee

~:,,~~-< er n. rrediDin ... 't'rustor and Trustee

-11· STAT~ OP TEXAS I COU'N'l'Y OP JWUliS I iii ~, Before ••• ~e qndersiqned authority, on tbis d4y personally ·.~ appeared An4y I. we.U.ar, known to- to :be the paraon ~osa 'n&IDa La 0 s\lbsari))e~ to the tareqoing inatrwaent, and .acknowledged to • that he executed the same for tbe purposes and consideration therein expreaaed, and in tha capacity thnain stated, 0 Givan under my hand and seal this ~day ot )c.ccm'J2c.( 1994. N 0

the State ot fexaa

STATE OF TEXAS COUN'l'Y OP BARRIS • I Before me, the undersigned authority, on this day personally appeared Katharine ~iedaan Wainer, known to me to be the person whose nama ia allbaodbed to the- toreg'oing instrwaent, and acknowledged to me that she executed the .... tor the purposes and consideration therein expreased, and in the capacity therein stated. Given under my hand and seal this 13~h day of! )>ucmbe.r 1994.

Noablo n end fOJ: the state of Texas

-12- I I

By this- trust egra8111BDt, Andy :t. WeiDer IUid l!tatharj,.na Prle4miUI W.J.11er, llasbancl IUicJ wife, lloJ:!I ol llazris COW'!i:l'1 Texas, as •trustors,• establish the Daniel steven Wain~ 1tt~ ~t· for the benef.i~ of ~air son, Daniel steyun Weine ("Da11ie111 ) , horn Kecb 11, 1tt6. 'rrUstora grant, a . .i!Pl and d~ivar to Andy I. Weiner IUid Jtatllarina l"riedman weiner, both of Ban:ia camty, Texas, as "trustees," the property describ.ed in :A.ttaohlaent .11. Jlttacblllent A, which is captioned •xnitial contributton. to the DIUiial steven Weiner 19945 TrUst," is incorporated by reference as a part: of tbb tr1,1St agre-ent. This trust agreement and tbe. t:rust•. aata:blisheci by it are irrevopabla. No person aball have the right to ~eVOke or amend this tzwst a;reuant or llJIY of "ita provisions. BoWI!IV8X, property soceptahle to the trustee llliy be ad4e4 to any trust tr= tillle to tillle in the tut~e by tzustw:a cr by any other peraon (includinq additions purauant to the provisions of the last vill of. any person). All re.ferences to •triUitee" shall refer to the person or parsons then acting aa sucb. A. PJUHARY TRUS'r

A•1, piatributione. Tbe inccae of the trust may be aoogmulated amd retainee!, in nola or in part, or the tzustee JDAy 4iatril1Ute to Daniel, frC'II tillle to time, so liNCh or all ot the trust estate as, in the t:J:Ustee 1 a discretion, is in Daniel's best inte1'asts. A-2. 7VPinat.iqp. Daniel PY w1tbdraw any part or all ot the trust eatate vitbin eo da:rs afte he :¥o0118s BIIJa 21, and aay thereby teminate the t:rwrt J& to the part vitbm-awn. 11i111:cUe at tbia witb41:aval rigbt aball be by 011a or 110ra written instrwDanta delivered. to the trust:8e within the 450-day period. :If or to the extant that Daaial does not exercise ~is withdrawal rivht, the trust shall continua until Daniel becoaea ega 30 or 4iea before that ~9a, at which tiaa the trust eetate shall be distributed! (a) To Daniel. (b) If Daniel ill not than liViJ\9, ·to such one or mora persona, corporJttiona or organbationa (including Daniel's estate), aa Daniel eppobta by a will which apecifioally xef.n-a to this poilu: -of appolntlllant. If or to the extent- that Daniel does not effactivaly exercise this paver of appointment, the txust ilatste shall lla cUstri,J,uted: (1) '1'c:1 Daniel's daaoendanta, ·

(2) If none of Daniel's de&C1lftdants is than t"ivinq, to truato~a• deaoand&nta.

EXHIBITB P'"' l'l• ~~~~~~1 l:lmil

.1'111111, 11,uWI

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J) ~::j (3) If none of trustora' duoendanta 1a tben livLnCJ, to ~~:r i~m1~:

c:~ trustor•' heira. A-3. r•mant pf • • • • If Daniel I. vill oontaina no contrary 4Jzact our the trustee aball pay troa tba UWtt estate tba e~~tira iDCI'. .ant .1.r1 taxea paya)Jla by raascm of Daniel 1 a death· ( inclUd.l.ftv r\t llnY interest or penaltiea thereon) to tbe extant (if any) tbat tbe total of aucl:l taxes is qreater tl:lan would have been illjioaed if no ,,.... !''"'~= port.ion of the t:zust estate ware taltan into account in datansinbq !~\J ~~:::1 . 0 aucb taxes. B. CONTINGENT TRUSTS . . ~~~1,1~

.. N 0 B•1. frUit• "lfbHBhOd, any portion of a trust eatate upon tbe trusts taraina on (ot.beJ: tbu a port:ion witb4l'&vn by Dalliel pursuant to Pu-avzoapb A-21 w'biob would be distrilNtable to a 0 benetioiaxy wo J.e under ave 30 Gl' to a banafioiazy no 1a under • le;al dieability instead aball ~e distributed to the truatee of a ContlnCJant Tr:uat (unleaa othenrba dir8Citecl by tbe valid aarciae of a powu of apPointment) • Bacl:l blmef!c:iazy' a portion ao distributed ab&l~ be bald ADd edminiaterad aa tbo initial trust utata of a aapu-ate truet for tba !lenetioiary. Rowevw, if a Contin!Jant ft'Uat b already in axiatanoa for that llanatioiuy, any ad!Utional portlo11 to be c1!atdbutecl to the trullt. . of a Co11ti119eat 'l'rUat tor the beaefioiary aball be addM to the trust: eatete ot the exi•tin~ contingent Trait.

B-2 • Diat,ribQiiiona. "l'be inCOIIe of each contin9eat ftllat aay be aCCWDulat.e4 and .J"eteined, in whole or in put, or the truatee uy distribute to tba beneficiary for Wboe tba truet was a.t&bliabad, free tbe to tbe ao aucl:l or all of tba truat estate ••, 1n tba truatea 1 e diac:retlon, ie in the beneficiary's beat 1Dteresta. B-3. Temination, Bach continqent Trust aball teninate when tbe beneficiary ~or Wbom the trust vas e.t&blisbed baa baooaa a!fa lO and ia Wider no 18'181 disability or upon tba !lenldiciary'a aerlier death. Opon t:B%'11ination, the trust estate sbllll be cliatributedl (a) To the beneficiary. "(b) l t tbe beneficiary is not than living, to auab one or :acre peraons, c:c;p:porations or org'&nbatiou aa the banetiaiu-y appoints by a will wbicl:l specifically ratan to thie pover of appointment. 1:1: n~ne of the baneticiaxy•a deeoan4ute iB tben livin9, this power may .not lie exarciae4 in favor of the benafioiuy tba beneficiary's .State, the beneficiary'• cnclitora or the cradtton ot tha banaticlary'l oatat.e. If or to tbe tUI'tant that the beneficiary c!oaa 110t effectively exercise this power ,of appointme11t, the trult estate aball ba distributed: {1) To the beneficiary's dascandants. (2) I~ none of the beneficiary's desc:ondallts is than livin.,, to the descendants or the baneticiary's noareet anoeator who waa one of t1'1.11Jtors' descendiUits and wbo has ducandanta then 11ving', (3) If none of tlleaa peraona ia then liv1n9, to truetora, cluoendante. (4) If none of truet:ora' deaoendanta 1e then livin'l, to trustor&' hairs. C, DIS'l'RZBOTIOMS c-1, J;tiatr1butipna 1;Q pr Cgr ttaneflgbriea, During the t112:11 of a trust,· IUIY diet1'ibut1on to be ude to a beneficiary cr- the trust may be -de (1) to the blmeflciuy, (ll) i t the buafioiuy ia under a legal disability or if tbe tlNst:ee det.or:ainu that t:be beneficiary 1a unable to properly manage hie affaire, to a paraon furnishing support, uintenance or eduoaUoa for the beneficiary or vith whDIII the ~Mneficlu:y ia roe1cJ.in9, tor expenditure on the beneficiary's behalf, or (U1) to a 0\lBt:ocUIUI tor a minor: baneUciary, as aeleot:ed by tile tzuatee, under the tJn1fol:lll Gifts to Xinore Act: of any state. Al1:a:lmllt:ive1YI the trustee 1118Y othervias apply all or a put of tho ct1at:dmition for tbe l:lenaf1oieaoy's buetit. Bovaver, 110 nob diat:rilRJtion shall be •ada to a trustor, to any IIJIOil&e of a uu.ator 1 or in a.ny •anne:r that atecbarges a leqal obligation ( inolu41119 an e~bllgat:ion of INJIPOR) of a trustor: or lillY spouse oC a truator. 11rtt eli atribution under this paraeJ:raph shall be a full diacbai:9B of the trustee vitll respect thereto. c-2, yat Int.anst• pf l!anpt'fclary, In IIAkintJ 41at1'ibutiona in. tho "beet int.eroota" ot a benet oiaaoy 1 the b'ulltea may c:anaider t:be aqe of tho beftaficiaaoy, tba ooet:.a of thB benaClciary's auppo:rt, maintanuce, educatiOD ud ~ort without rlltJarcl to any other: r:eaourcea available to the beneficiary tor theaa purpoaaa, the effect of any distribUtion upon the inca- aDd U"&n8fer tax liability of the l:nmefioiarY or of the trust, and any otbar tactora de11111ed relevant 1Jy the 1:r\latoe, 1), O'FFIC:I OP TRtJS'rE! D•l, Cv-fr!lstel. sucapMr IJ.Irullbp. '1'b8 following- pravieiona shall apply to each separate trust established under this trust eiJZ'eement: (e) sucpesaor 'l'rpatae, Should Andy I. Weiner or Katherine Priedaan weiner cease to act aa trustee, for any reaaon, the ona raainlntJ aball continuo to act ae trustee. Sbould l:lotb Andy I. Weiner and ttatherina Frie4mlln Weiner ceaaa to aot: ae trustees, for any reason, t:ruetora appoint Bayle Weiner orullol aa auccaaaor trustee. .

-3- (1::1) APPpir¢mant ot Sp;c;aa1pr TZ:Mte• by 'l'nu•Sif:· At any tillla after ;ualifyinG as U\Jataa, IU\l' b:Witee uy appo t a aucc::ea•or tr:ustaa to act l» his place, aitbar ilaDadiately or in the future upon any stated oontincJenoy, and aay tbe1'eby suppl-ut the provisions ot subparagraph (a), (o) Appgint:Jpant. gt: Spcgaaagr :Datea by Banafic!arig, If at any time there is no U\Jstee acting and none baa been appointed, a majority of the beneficiaries (acting throup the benaficiaxy's natural or letal vuucUan 01r la9al zoepra&antat.ive, ih tba aa.e of a benefioiery under: a 1119•1 cUAbility) wbo llipt then be e11titlad to receive a dist.ributiOII fro. the trust eatato shall appoint a successor trustee. - 0 (d) ADppint;mMt pf Co='!'nJ&liat. Tbe t.ruatee unanimouBly if mcn:a thiUI one) mey appoint one or more co-trustees. (actinv 0 {o) W'IJo Nay aa Appoint;.tO.. A sucoaaaor t.ruatee ~ oo•trustae may l:la any individwal, bank or trust o0111pany and may be d011icilec! anywhere. {f) Prgqpdpre fer Af'plntaant;, Appointment abaU be ude 'by ~ittan iDsti'UIIent. tile ritb tba trust ncorda. Any auob appointment may be cbantecS or revoked prior to the data it bec011aa affective, Any nob appoint:wlent ·lll&y be limited in uy aanner: deemed adviaule by the pct¥11011 aald.nv the appoillt.ent, includilltr Cor ~le, reat.rictim.r the PGWR over dietributions as nacasaary to avoid the illpollitian of any t.u upon the tnaat, the appointee or the appointee • a aatata. D-2, Batianatlgn gC zruat;g. A U\Jatee . .y resign .rro. a trust without the neo..aity of BnJ court proceeding upon aeettnq tbasa conclitionll (a) lfSl.t.ig§, At l.eaat 30 up• written .notice (ir not waived) shall be qiven to eaCh beneficiary Wbo might then be entitled to receive a distribution troll the trust utate. I f a Rerlaficiary is under: e leqal diaal:l111t;y, notioa aball be given to (or waived by) the benefioiary 1 a natural or legal vuez4ian. (b) Acegpntins. It ancl to tho extant: required by tbe successor trWStea 1 an accounting for the a41111niatration of the trust aball ba gl.van to the ncceaaor tru.tea. Tbe successor trustee shall be fully protected in relyinq upon such accauntinv. O-J. Bights And Liabilities. (a) Bgnd Hpt. Bquire4, No bond or other security shall 11e required of any truataa. (lJ) Liabilitips. This agraBII!ent aball always be construec1 in

-4- favor of the validity or IUIY a~ by or Olllillsion ·at any. trustee. A trustee aUl not ba liable tor any aat or aaiieaion except in tbe case of grosa negligence, batt faith or fraud. 8peoit1cally, in aaeessing tba p~lety or any invaetaant of a trust estate, tbe overall pe.rfonance or tlle entire tnet eetate eball be taken tnto acoo~mt.

(c) COJ!Rinsatipn. Bach tr'ueteo ehall ~e entitled to receive reasonable compensation tor services actually renderelt to a truat. E. ADMINISTRATION

1:-1. General Pgyers~t ll'n!Jtaa. To carry out the trust purpoees but aubjeat: to any l i tatione stated alaeVbere herein, the truatee or eacb trust sball bave tba following powere, whlell aay be exercised tree froa court aupenielon, and WbJ.eh &ball exist until all or the trust utate has been dlsb'ibuted: (a) TrU!!t. ll!tat.a. ':rbe trueteo IIIII)' invest and reinvest all or any part of the trwlt estate in property of any daecription and say retain as a part of tbe tl'Wit utata any pzooperty acquired at any time and 1n any •~r. 8pec1t1cally, and without regard to the provielons ot any applicable state lawt tbe tn1tee aay retain, or invest IUI4 reinveet in, property unprOCNativa of iDCGIU, sbarea or open or clolacl and inveetltent tru.eta or OOIIJNlnlea, vastinv aeeete, and any other pz"Oparty, regardlese of location and without regard to any roquiruent of dlve.rsltioation u to ltinli O't' -o'IU\t. (bJ 1\!sina§l lld;IIZ'Bil'· fta trustee aey continue oparatian ot any buainaaa entity, in any bWiinoas ton, wltb all Ol:' any part or the trust estate, and aay reorganize or liquidate any such entity at any time. (c) 'l'ranefors. I..qana. 'lbe trustee may leaae, sell, transfer, or enowabarill any 11anner (includinv with purehaao 111oney mortgagee) all or any part of the trust alft:ate, and uy loan or :borrow 110noy in any aaDJie.r (inolucling by joint and several obligatiODe) vlth or without seCNrity. lubjeot to tile provisions of Paragrapb E-3 (a), tho trustee aay purollase oseete troa ttie estate or a trustor and aay loan tunda to the eetate ot a truetor at such rate ot .intereet and with aucb aecurlty as the trusteadete~nee to be in tbe beet interests of the current b.ncfioiarih of tba trust. (d) pealingg With :BI111;14 Partleg. 'l'be trustee ~~«Y deal with any person or entity rag&rdlesa or any relationship or idantlty at any trustee to or with that person or entity and may hold or inveat all or any part ot the trust ..tete in co-on or undi vi dad interests with that person or entity. (e) Agants. l!lployee~. !rha ~tea 11ay employ and COIIpenaate agents and othar eaployeas 'Wicl may delegate to them any and all discretions and paver1. (f) ra;titipnt. piatribpttMa, The trustee ••Y partition all or any part of any lntareat, aay pay and receive suab aoneya or propertiea as may be neceasary to ~aliaa clUterancea, and in so doing (i) lii&Y 1181Ca any distribution or all or any put of the t.nat estate in any aanner (including ca.paaing !hares dlffa~ently) and (11) ...Y evaluate any property, whiob valuation shall be .binclinv on all beneticiariaa. (9) c:lai•a Gcmt;rgyorllll, fte tzuatae may maintain and defend any claill or oontrovaray by or aqainet the truat without tba joinder or conaant of any ~riciary. (h) A44itignal pqwara. In addition, the trustee shall have all :t'ighte, pdvile,ea and power11 now or hereafter qrantad to trustees in 'l'eXaa, includinv those granted under the Taxu 'l'rust Code. Any e=-equant ltMJlalation or ~btion axpanclinv or 11Jaiting the rights, priviltMJ•• and powers grantee! a tnstee ehall apply to all trutta hereunder Ulllaaa 'tba b'uttaa ala~ not to bavt eucb legislation or regulation apply to a particular ~at by a written inabnlaant tiled vith t'ba tnlat rac~:~~rdt, Bowaver, the provbiona aa4e for the various beaaliciariea under this trutt aiJI'eamant ve exol11aive. AllY statute that purpcxrta to IAlarva the class of banefioiariea to Vban distributions ID8Y be aada or the purpotee for which diatribllti- aay be ID8de eball J\Ot apply to any trust, All b'uat powers ..y lMt exercised upcm such tU'IIa as the trustee deems aclvia&bla and aay affect truat propart1e• for any lenqtb of tille ~"arcllsaa of the "c!ura1:1an of the trust. Ganarally, and INbject only to the ter~Ds of tbis trust avra-ant, the trustee shall hold, aanare, control, wsa, inveat, reinvest, ancl cliapoae of the ti'U81: estate to the sue extent aa i.t the trustee ware the tea aiaple cwnar thereat. B-2, Principal ADd .ln!iSIII.I pat;aplna1;iqns, 'the receipte, diaburaeaante and reaervee of aaah tra1t _.y be allocated, on a c ..h or aocraal ba•i• between principal and inoo•e in the trustee's discretion without regard to the proviaiona of any statute. To the extent the t2:Uatee doee not exercise this discretionary power, the previsions of the TeXas TrUst ~ode shall control. !-3. BDBtriqtiong gn tbe E¥Prei•a of Carta1n egwera, (o) paaUnsa with 'l'fU!It Bstata, No povar granted the trustee shall be oonatrued to enabla any ~son to purahaaa, exchange, or otherwise deal with or dispose of any trust estate tor lass t.ban ~ adequate consideration in IDOnay or •oney 1 a worth or to authorize loan• to any person vith~:~~ut adequate interest. No part of any trust utate may b1 (i) loaned to a truator or to any apouse of a trustor or ( 11) BPJilied to tbe ~:~ay.ant: of praai\1118 an ~:~oliciea of insurance on the life of a trustor or on the life or any apouse of a truster. dis~et (kll Digtrllm1;ians tg or Cpr :zxustao, Anr power to uJte anary 4istribut1ona to or far the benef t ot a parson wbo is ...vin9 as trustee of a trust (inaludtng distributions to the p81'8011 1 s spouse and 4iatrillut1ona 1n diacbaqa of any lqal obligation of tbe person) shall be exel'aisa.ble solely t~y the trustee 01: trustees other tban that: person, If no other t:ruat:ea 1a than serving, aucb pRVel' shell not: be exuaisahle. B-4 • Boloaq1 1nd polaqationa ot Pgt«ara. Any power 9J:ant:e4 to a trustee ••Y ba zoeleasec1, in whole 01' in part, t811J1Qn:rily ar pell:'ll&nently, BICI;Iept aa pravidel! in PAI'agl'apb E-3, any such pover uy be clel~atad, in Whole 01' 1n part, taporarily or penanontly, to •I'll' oth..- t:rustoa than aatinv. A :raleaea 01' dal8911tian llhall be by v:ritteJI inatru:llent filed with the raccmSs of aacb t~t: to vhicb the release or dale,ation applies. P. J)El"'Dft'::tOfiS AND GBHBRAL PROVX&IONS

P-1. 'f.FUpt Elz..Pta• '"l"n'st estate• 1U&ns all assets, bovavu and whenever acqu eel (incluclblg ihCOIIe and aoCNIIUlated incolle), Vhicb :uy belon9 to a trust at anr given time. r-2, PMAAndi"H· •oaacel\danu• 1Uan& tbe lagitilaat:e ahUcl:ru of the person or pereans daal.faated and the legitimate 11Pal desoendante of such cb.ilclreJI, U4 inc:luclea any pU'aon adopted bet ora becoaing ave 11 and ths a«opt:ad pcrson • s cluceJ!danta. A posth11110ua ohild shall 1Ma c:onsiclered as living st the clsatb of his parent. Whenever a 4ist:r1but1on is to be made to tbe deaoandanta of any paraan, the property to be distrillutecl eball be 4ivi4ad i.nto aa 11any equal 8haras aa there are living' chilcl:ren of the person and deoeaaad obilclran of the puaon wbo 1ert. 4eaoandant:a wbo ua than living. Bacb living abild llbel1 talca ona ab&l'a ane tba a!ua:n of each deceased abilcl 8ha11 be dividad aaong bls then livinq deaaendanb in the sua manner. •trustor&' deacandanta" bloludea only tboso persons descended from both truators. P-3. Ba.lu· Any diat:ribution to ~a :ude to the "heirs" of 11 parson &hall be made to tho individual• Wbo would bave tnheritod the parson • s psr:sonal property if t!le pN'Son bad died intestate at the ti11e the diat:rlbution ia toM .ads, clomioileclin Texu and not mar:riecl, under the leva of 'l'e'Xea in foroo on tbe effective elate af tbie trust a~euODt, with tbe abares of takin9 detenai.Jied kly those lava. Bowevar, both truatore and any 8PO\US4I of a truator eball be deaed to bave c!iacl prior: to tba tble tbat any auob 41stributlon 1B to be made, A d!atr:ibution to atr:wrtore• baira" shall be 11ada to the heirs of Andy I, Wainer:. r-4. Internal Bev•nue COda. "%nt:ornal, Revenue COda• moana the Internal Revenue COde of 1!18&, aiJ uan4e4, ar cor:raapondinv proviaions of any subsequent federal tax lava.

-7- P-5. SliihB£ 'l'NTUI. The use o~ any gander inolucl- 1:ba otber gander&, and tba uaa of eitbar tbe aingular or the plural includea t:Jia otber. F•6. SpMdthrif't PJ'pylaipn. lfo banaticiary &ball bave the powu to anticipate, onoabe.r, or ta-anafer bia 1ntueat ill any tl'Wit eatata 1n any .amu. lfo pan of any tzuat eatate &ball· 1Ht liula tor or charged witb any dabt:a, contracts, l1alJiUtiea or tort:.a of a banetioiary ol' aUbjoot to aaiaura or other procaaa by any creditor of a banefioiary. Nothing in tbia paragraph aball be conatruad to lbdt tba otbezv:l.aa valid exercise of a power of appointment or rigbt of withdrawal given by thia trust ayraa.ont. P-7, :rex11 Lay Aapliea. '.l'ba aitua of the truata aat&bliahed under tllia trust agre01D811t ia 'l'eXaa. Rberevar poaaible, tbe lava of Taxaa ahall apply to the con&trl.lction, adniniatration and validity of aaob truat. P•B , Kaxipwp 'l'aEJI gf 'l'ruata, lfo truat shall continua for a period longer than a1 yaua after the death of the laat to die of truatora and all of truatar.• daaoondanta who ere l~vinv on the affaotive date of thia truat aqrea111ant. AllY ~t atill in foroa at t.ba and of aucll period ahall tenainate, and the truet aatate aJI.all be distributed to the banatioiary for vboa the trust waa eatalJliahed. P-9, i!ZWV'' pt:; Apppintpumt J!Drsilebla by Raneflpierlaa, exeroia ng a power of appointment vivan to a beneficiary by thia :tn

trust agreaent, the benaticiary . .Y appoint the property aulljeot to the powa1; outr1CJI:It to the appointee, in trust, or to a CIWitodiiUI tor tl:le appointea under tbe 'Dnifana Gitta to H~a Aft of uy atate. xt t:ba banefioJ.a-cy appoi.JI.te to a ou•todian, be . .lf aelecn: tlle ouato.Sia.n. I t the beneficiary appointe in b:Wit, be aay aalecst the· truatae or b:Witeea, aay eat&bliab aucb adllinlst.J:ative tenaa for the trust ae he de81Da appz"opriate, and aay ialpoae lawful spendthrift restrictions. Ke aay giva the trustee dfsoretionary powera over the inc011e and principal, an4 may create a truet that baa several peraieaUila dietrilNtaea. Be IIBY create life intereata or ctbar l1aita4 interest& in soae appointees vi th :future interests in favor of othiiZ' appointeu, aay appoint dif:t81"81'1t typea of interuta uonv the eppoinceea, and aay create new pcwara of appointment in a uutae or tzouataes or in any appointee. Ra aay iapose lawful conditions on an appointaant and,, in general, may appoint to or aaonv the appo1ntaea in any lawful JIIUIII&r. In detenining wbatber, in what IIIIUU\IIZ' ancl to what extant a testamentary power of appointment has bean exercised by a beneficiary, the trustee aay act in reliance upon a court order admitting an inetruaant to probata as the bana:ticiary'a last will or an order findinv that the banetioiary died intestate. Onlaas within six montba after the beneticiary•a 4eatb the truatoe baa actual notice of tha existence of procaedi1198 to probata a will of the beneficiary, the trustee shall aaauae that tbe beneficiary died -8- "~";:r co !;:J 1::~ L~~

0 'it en ,., ..lllll~. r 'l

intestate. Tbe foregoing provisions are intended to expedite the p~ompt and ett ioiiUit adlliniatretion of the Uullt and to protaot the ~' t:.rustee troa any aot.t.on tllken or diatrUnltion JUde ill accorcSBJica r:r.~l;ll witb tbeee provbiona. lfotblng 1n tllia paragrapb ahall liait or ~:~ qualify any power of appointllant: given by thia truat avre•ent o~ any right wllich an appointee or talcer 1n default ot appointaent aay t:;\j ~"! have against ·~ person receiving a distribution troa the trustee ill. t: i~respective of the place of p~obata o~ of tba ti•• of diaoovary of ! "'I~ c a vill exercising. the pover ~ any other aotion talcan in the C4~J banefioiar.y'a estate. ~ ~:~:~ ,. G. ACCI!P'l'MCB BY TROS'l'EB ~~~~:1 ..., 1\ By eign1J19 tbia trust aq~eiRient, the trustee (i) accepts tbeae truata and all of the ri9hta, povara and dutieo attached to the "'"' office of twataa aa provided herein, ( UJ agrees to aa.rva as

" truat.. of the Daniel staveD Wainer 1116 ft'~aat and of any contingent 'l'ruata wtaicb aay be aatabliabecl under t:!IJ.a trulft afTBeaent, (iii) ecJcnovladgaa receipt of tba property daacribad in Attachaent ~. IUid (iv) eqreaa to bold and adainiatar e&cb trust estate in aocordanco viti\ the ter.a of thia truat agrae•ant. Tbis t:ruat BtJreeaent is executed aftaotiva as of tba :roth day Of Ma~oh, 111V6,

Alidy r. wain•~, T'r\iator and Tr\Uitee

ia£barlie Pdedaan Wainer, !r\lator and Trustee

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~ ,_'!l A'l'TACIDCEN'l' TO ~~ ST~~tJIER 1f9 6 'l'ROST '1'HB r:wri..., CON'l'RIBD'l'IOJIS !o ~

,0 c~

... c"' iildyl. lunar, TrUStor and TrUstee

iat&arlne ri'li&n lleliier • !rU&tor and ~tee .

II I

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