in Re Kenneth Vern Gibbs and Candace Gibbs Walton

Opinion

ACCEPTED 06-15-00002-CV SIXTH COURT OF APPEALS TEXARKANA, TEXAS 06-15-00002-CV 1/12/2015 4:29:33 PM DEBBIE AUTREY CLERK No. ___________________

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FILED IN IN THE COURT OF APPEALS FOR THE 6th COURT OF APPEALS TEXARKANA, TEXAS SIXTH DISTRICT OF TEXAS 1/12/2015 4:29:33 PM AT TEXARKANA DEBBIE AUTREY

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Clerk

IN RE KENNETH VERN GIBBS, CANDACE GIBBS WALTON

Defendants / Relators, Cause no. CV-14-41665

HONORABLE LAURINE J. BLAKE, The 336th Judicial District Court

Respondent, and Fannin County, Texas

PENTEX FOUNDATION and JOSHUA UNGER, TRUSTEE of GBU FRIENDS AND ASSOCIATES TRUST

Plaintiffs and Real Parties in Interest.

RELATORS’ PETITION FOR WRIT OF MANDAMUS

ROBERT G. HOGUE, P.C. 4514 Cole Avenue, Suite 600 Dallas, Texas 75205-4193 Phone: (214) 559-7107 Fax: (214) 559-7101 Email: robhogue@msn.com

LAW OFFICES OF CHRISTY LEE, P.C. 777 Main Street, Suite 600 Fort Worth, Texas 76102 Telephone: (817) 504-6075 Telecopier: (800) 437-7901 Email: clee@christyleelaw.com

ATTORNEYS FOR RELATORS / DEFENDANTS KENNETH VERN GIBBS AND CANDACE GIBBS WALTON JANUARY 12, 2015

_____________________________________________________________________________________

IN THE COURT OF APPEALS FOR THE SIXTH DISTRICT OF TEXAS AT TEXARKANA

_____________________________________________________________________________________

IN RE KENNETH VERN GIBBS, CANDACE GIBBS WALTON

Defendants / Relators, Cause no. CV-14-41665

HONORABLE LAURINE J. BLAKE, The 336th Judicial District Court

Respondent, and Fannin County, Texas

PENTEX FOUNDATION and JOSHUA UNGER, TRUSTEE of GBU FRIENDS AND ASSOCIATES TRUST

Plaintiffs and Real Parties in Interest.

RELATORS’ PETITION FOR WRIT OF MANDAMUS

IDENTITY OF PARTIES AND COUNSEL

KENNETH VERN GIBBS AND CANDACE GIBBS WALTON RELATORS / DEFENDANTS

ROBERT G. HOGUE, P.C. LAW OFFICES OF CHRISTY LEE, P.C.

4514 Cole Avenue, Suite 600 777 Main Street, Suite 600 Dallas, Texas 75205-4193 Fort Worth, Texas 76102 Phone: (214) 559-7107 Telephone: (817) 504-6075 Fax: (214) 559-7101 Telecopier: (800) 437-7901 Email: robhogue@msn.com Email: clee@christyleelaw.com

ATTORNEYS FOR RELATORS / DEFENDANTS KENNETH GIBBS AND CANDACE GIBBS WALTON

HONORABLE LAURINE J. BLAKE 336TH JUDICIAL DISTRICT COURT RESPONDENT

PENTEX FOUNDATION AND JOSHUA UNGER, TRUSTEE OF GBU FRIENDS AND ASSOCIATES TRUST PLAINTIFFS AND REAL PARTIES IN INTEREST

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Mr. T. Scott Smith Attorney and Counselor at Law 120 S. Crockett Street Sherman, Texas 75090

ATTORNEY FOR THE PLAINTIFFS / REAL PARTIES IN INTEREST

Howard Kirk Gibbs 9929 Crawford Farm Drive Fort Worth, TX 76244

DEFENDANT, PRO SE

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TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

ISSUE PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

THE TRIAL COURT WAS WITHOUT JURISDICTION TO SIGN ITS NOVEMBER 21, 2014 “ORDER ON MOTION TO RECONSIDER ORDER TO TRANSFER VENUE,” AND ACCORDINGLY MANDAMUS SHOULD ISSUE.

A. The trial court signed an Order transferring venue more than 30 days prior to signing the “Order on Motion to Reconsider Order to Transfer Venue” . . . . . . . . . . . . . . . . . . . . . 8

B. Texas courts consistently hold that a trial court’s plenary power over a venue transfer order expires after 30 days, despite the filing of a motion to reconsider the transfer . . . . . . . 8

C. Nowhere in the trial court’s record did the Relator modify, reconsider, or vacate the transfer Order within thirty days . . . . . 9

D. When an order is void, the relator need not show that it lacks an adequate appellate remedy, and mandamus relief is appropriate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

E. The Court of Appeals should grant temporary and mandamus relief in order to avoid waste of judicial and party resources in a trial court that has lost jurisdiction, issue a writ of mandamus staying all further proceedings and discovery in the Fannin County trial court, and

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direct the trial court’s clerk to physically transfer the file to the transferee court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

CONCLUSION AND PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

VERIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

APPENDIX (Clerk’s Record) Pages 1 to 758

Reporter’s Record (September 30, 2014 hearing on motion to transfer)

Reporter’s Record (November 12, 2014 hearing on motion to reconsider)

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INDEX OF AUTHORITIES

Case Authorities

HCA Health Servs. of Tex., Inc. v. Salinas, 838 S.W.2d 246 (Tex. 1992) (orig. proceeding) (per curiam) . . . . . . . . 10, 11

In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379 (Tex. 2005) (orig. proceeding) (per curiam) . . . . . . . . . . . . . 9

In re Chester, 309 S.W.3d 713 (Tex. App.—Houston [14th Dist.] 2010, original proceeding) . . . . . 9, 10, 12-14, 15

In re Darling Homes, No. 05–05–00497–CV, 2005 WL 1390378 (Tex. App.—Dallas June 14, 2005, orig. proceeding) . . . . . . . . . . . . . . . . 11-12, 14

In re Lumbermens Mut. Cas. Co., 184 S.W.3d 729 (Tex. 2006) (orig. proceeding) . . . . . . . . . . . . . . . . . . . 16-17

In re Reed, 901 S.W.2d 604 (Tex. App.–San Antonio 1995, orig. proceeding). . . . . . . . . . . . . . . . . . . . . 17

In re Southwestern Bell Tel. Co., 35 S.W.3d 602 (Tex. 2000) (orig. proceeding) (per curiam) . . . . . . . . . . 9, 11

In re Team Rocket, L.P., 256 S.W.3d 257 (Tex. 2008) (orig. proceeding). . . . . . . . . . . . . . . . . . . . 9, 10

Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (orig. proceeding) . . . . . . . . . . . . . . 9

Zimmerman v. Ottis, 941 S.W.2d 259 (Tex. App. —Corpus Christi 1996, orig. proceeding) . . . . . . . . . . . . . . . . . . 15

Additional Authorities

TEX. CONST. art. 5, §6(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Tex. Gov’t Code §22.221(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

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STATEMENT OF THE CASE

This is a lawsuit for alleged breach of a realty and mineral rights contract.

The Respondent is the Honorable Laurine J. Blake, 336th Judicial District

Court, Fannin County Texas (referred to herein as “the Respondent” or “the trial

court”).

The Respondent signed an Order transferring venue, and then, more than 30

days later, signed an “Order on Motion to Reconsider Order to Transfer Venue” that

purported to vacate the prior transfer Order. The Relators seek mandamus relief

from the “Order on Motion to Reconsider Order to Transfer Venue” because it is

void and the Respondent was without jurisdiction to sign it.

STATEMENT OF JURISDICTION

The Court has jurisdiction to issue a writ of mandamus. TEX. CONST. art. 5,

§6(a); TEX. GOV’T CODE §22.221(b)(1).

ISSUE PRESENTED

Did the trial court abuse its discretion in signing the “Order on Motion to

Reconsider Order to Transfer Venue” more than 30 days after signing the original

Order transferring venue?

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STATEMENT OF FACTS

This is a lawsuit for alleged breach of a realty and mineral rights contract.

(Appendix pages 7 to 25.) The Relators / Defendants sought transfer of venue by

motion, on grounds of proper venue in Tarrant County rather than Fannin County.

(Appendix pages 37 to 38.) After a hearing on the Relators’ motion to transfer, the

Fannin County trial court, Honorable Laurine J. Blake, Respondent, granted the

motion to transfer venue and ordered the case transferred to Tarrant County by

Order signed on September 30, 2014. (Appendix page 650.) The trial court then

held a hearing on the Plaintiffs / Real Parties in Interest’s motion to reconsider the

transfer, and on November 21, 2014 — more than thirty days after signing of the

September 30, 2014 transfer Order — signed an “Order on Motion to Reconsider

Order to Transfer Venue,” which purported to vacate the transfer Order and retain

venue in Fannin County. (Appendix page 751.)

ARGUMENT AND AUTHORITIES

THE TRIAL COURT WAS WITHOUT JURISDICTION TO SIGN ITS NOVEMBER 21, 2014 “ORDER ON MOTION TO RECONSIDER ORDER TO TRANSFER VENUE,” AND ACCORDINGLY MANDAMUS SHOULD ISSUE.

A. The trial court signed an Order transferring venue more than 30 days prior to signing the “Order on Motion to Reconsider Order to Transfer Venue.”

B. Texas courts consistently hold that a trial court’s plenary power over a venue transfer order expires after thirty days, despite the filing of a motion to reconsider the transfer.

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C. Nowhere in the trial court’s record did the Respondent modify, reconsider, or vacate the transfer Order within thirty days.

Because the Respondent’s November 21, 2014 “Order on Motion to

Reconsider Order to Transfer Venue” was signed after the trial court lost plenary

jurisdiction on October 30, 2014 (i.e., thirty days after signing of the original transfer

Order), the November 21, 2014 reconsideration Order is void. See In re Chester,

309 S.W.3d 713, 719 (Tex. App.—Houston [14th Dist.] 2010, original proceeding)

(“The trial court abused its discretion by vacating its . . . transfer order after its

plenary power had expired. The trial court’s [vacating] order is void”).

To be entitled to the extraordinary relief of a writ of mandamus, the relator

must show that the trial court abused its discretion and there is no adequate remedy

by appeal. In re Team Rocket, L.P., 256 S.W.3d 257, 259 (Tex. 2008) (orig.

proceeding). A trial court abuses its discretion if it reaches a decision so arbitrary and

unreasonable as to constitute a clear and prejudicial error of law, or if it clearly fails to

correctly analyze or apply the law. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d

379, 382 (Tex. 2005) (orig. proceeding) (per curiam); Walker v. Packer, 827 S.W.2d

833, 839 (Tex. 1992) (orig. proceeding). When an order is void, the relator need not

show that it did not have an adequate appellate remedy, and mandamus relief is

appropriate. In re Southwestern Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000)

(orig. proceeding) (per curiam).

The Respondent’s November 21, 2014 “Order on Motion to Reconsider Order

to Transfer Venue” order is void because the trial court had lost plenary jurisdiction

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to set aside the September 30, 2014 transfer Order thirty days after the transfer

Order was signed. The trial court has plenary power to grant a new trial or vacate,

modify or reform a judgment within thirty days after the judgment is signed. TEX. R.

CIV. P. 329b(d). Although a transfer order such as September 30, 2014 transfer

Order in this case does not fall within the purview of a judgment under Rule 329b,

the Supreme Court of Texas has applied Rule 329b(d) to such venue transfer orders.

See HCA Health Servs. of Tex., Inc. v. Salinas, 838 S.W.2d 246, 248 (Tex. 1992)

(orig. proceeding) (per curiam).

Under Rule 329b(e), if a motion for new trial is timely filed, the trial court has

plenary power to grant a new trial or to vacate, modify, correct, or reform a judgment

until thirty days after all such timely-filed motions are overruled, either by written

and signed order or by operation of law, whichever occurs first. TEX. R. CIV. P.

329b(e). However, Rule 329b(e) does not apply to motions for reconsideration of

venue transfer orders — such as that filed by the Plaintiffs / Real Parties in Interest

and considered and granted by the Respondent in the present case — as several Texas

cases have expressly recognized. See, e.g., In re Chester, 309 S.W.3d at 719.

Once the trial court has ruled on proper venue, that decision cannot be the

subject of an interlocutory appeal. In re Team Rocket, 256 S.W.3d at 259. Rule 87

provides that “if an action has been transferred to a proper county in response to a

motion to transfer, then no further motions to transfer shall be considered.’” Id. at

260 (quoting TEX. R. CIV. P. 87(5)). Although a trial court’s ruling transferring venue

is interlocutory for the parties, and not subject to immediate appeal, the transfer

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order is final for the transferring court as long as it is not altered within the court's

thirty-day plenary jurisdiction. Id.; see also In re Southwestern Bell, 35 S.W.3d at

605. A court retains plenary jurisdiction to correct any error for thirty days, but no

more than thirty days, after the transfer order is signed. HCA v. Salinas, 838 S.W.2d

at 248.

The court of appeals in In re Darling Homes also addressed whether Rule

329b(e) extends the plenary power of the trial court to set aside a transfer order when

a motion to reconsider is filed. See No. 05–05–00497–CV, 2005 WL 1390378 (Tex.

App.—Dallas June 14, 2005, orig. proceeding [mand. denied]) (mem. op.). In

Darling Homes, the trial court granted the defendants’ motion to transfer the case to

the transferee county on August 3, 2004. Id. at *1. On September 27, 2004, the

trial court granted the plaintiff’s motion to reconsider the transfer, vacating the

transfer. Id. The plaintiff argued, as do the plaintiffs in the present case, that the

filing of the motion to reconsider within thirty days of the signing of the transfer

order functioned as a motion for new trial, and extended the trial court’s plenary

power over the transfer order by 105 days pursuant to Rule 329b(e). See id. at *2.

The court of appeals disagreed, and declined to apply Rule 329b(e) to extend the trial

court’s jurisdiction after the signing of an order transferring venue to another county.

Id.

The court of appeals in In re Darling Homes observed that (1) an objection to

improper venue is waived if not made by written motion filed before or concurrently

with any other plea, pleading, or motion except a special appearance; (2) once a

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motion is filed, it is to be determined “promptly”; (3) except for the inability to

obtain a fair trial, only one motion to transfer is allowed in any case; (4) even if a

party is added after the first motion is filed, he cannot file a subsequent motion to

transfer except on the ground of inability to obtain a fair trial; and (5) interlocutory

appeals are prohibited. Id. (citing TEX. R. CIV. P. 86(1); 87(1), (5), and (6)). The

court explained the rationale for not expanding the trial court's jurisdiction beyond

thirty days with regard to a venue transfer order as follows:

These restrictions reflect the supreme court’s desire for rapid disposition of a motion to transfer. Were we to accept [the plaintiff’s] argument, litigation could be stalled for 105 days while the transferring court decides whether it will rescind its order. During that time, the receiving court is not obligated to take any action. Such delay is not an efficient use of judicial resources. Accordingly, we conclude a trial court's plenary jurisdiction is not extended by a motion to reconsider an order transferring venue.

Id. at *3.

The court of appeals in In re Chester found the Darling Homes reasoning to be

persuasive, and observed that allowing an extension of the trial court’s plenary

jurisdiction over a venue transfer order beyond thirty days would render meaningless

Rule 89, which sets forth the procedures for the transferor and transferee courts to

follow after the motion to transfer venue has been sustained. See TEX. R. CIV. P. 89.

Rule 89, entitled “Transferred if Motion is Sustained,” states, in relevant part:

. . . After the cause has been transferred, as above provided for the clerk of the court to which the cause has been transferred shall mail notification to the plaintiff or his attorney that transfer of the cause has been completed, that the

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filing fee in the proper court is due and payable within thirty days from the mailing of such notification, and that the case may be dismissed if the filing fee is not timely paid; and if such filing fee is timely paid, the cause will be subject to trial at the expiration of thirty days after the mailing of notification to the parties or their attorneys by the clerk that the papers have been filed in the court to which the cause has been transferred; and if the filing fee is not timely paid, any court of the transferee county to which the case might have been assigned, upon its own motion or the motion of a party, may dismiss the cause without prejudice to the refiling of same.

TEX. R. CIV. P. 89.

As the In re Chester court observed, Rule 89 triggers the timeframe in which

the transferee court can take action on the transferred case. Under Rule 89, after the

case has been transferred, the filing fee is due within thirty days from the mailing of

the notification to the parties that the transfer of the case has been completed. Id. If

the filing fee is not timely paid, the transferee court may dismiss without prejudice to

refiling. Id. If the filing fee is timely paid, the case will be subject to trial thirty days

after the mailing of the notification to the parties. Id.

Therefore, if a motion for rehearing of an order transferring venue were to

extend the transferring court’s plenary power beyond thirty days, the transferring

court would have up to 105 days to set aside the venue transfer order, even though

the case would be “subject to trial” in the transferee court long before the expiration

of the 105 days. It would not be feasible for the transferee court to hold the

transferred case in abeyance during the time in which the first court is deciding venue

on rehearing. Such a procedure would be contrary to policy that the venue

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determination be made early in the case. See id. at 718, citing In re Darling Homes,

2005 WL 1390378 at *2. Moreover, such a reading is not supported by the plain

language of Rule 89.

In the present case, the Relator’s clerk apparently did not actually effect

transfer of the file materials to the transferee court. However, the clerk’s duty in this

regard is merely ministerial, and thus failure to actually transfer the trial court’s

physical file from the transferring court to the transferee court cannot have extended

the former’s jurisdiction. See TEX. R. CIV. P. 89 (“If a motion to transfer venue is

sustained, the cause shall not be dismissed, but the court shall transfer said cause to

the proper court; and the costs incurred prior to the time such suit is filed in the

court to which said cause is transferred shall be taxed against the plaintiff. The clerk

shall make up a transcript of all the orders made in said cause, certifying thereto

officially under the seal of the court, and send it with the original papers in the cause

to the clerk of the court to which the venue has been changed.”) [emphases supplied].

If the transferring court’s clerk’s failure to physically transfer the file to the

transferee court could extend the transferring court’s plenary power, as the Plaintiffs /

Real Parties in interest argued here, then in effect the transferring court and clerk

could retain a “pocket veto” on the transfer order during whatever time period that

the clerk failed to complete the ministerial duty of physically transferring the file.

Such a result would be contrary to Rules 87 and 89, as well as the numerous case law

decisions on this topic. Cf. In re Chester at 718 (“the [transferring] trial court's lack

of jurisdiction is not based on when the [transferee] Court received the case file, but

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on the expiration of [the transferring court’s] plenary power after thirty days”).

Nowhere in the trial court’s record did the Respondent modify, reconsider, or

vacate the transfer Order within thirty days of signing it on September 30, 2014. See

Appendix pages 1 through 758. The filing and consideration of the plaintiffs’ motion

for reconsideration of the venue transfer did not extend the transferring court’s

plenary power. Therefore, the Respondent was without jurisdiction to set aside the

transfer Order by November 21, 2014, and thus the “Order on Motion to Reconsider

Order to Transfer Venue” of that date is void.

THE TRIAL COURT WAS WITHOUT JURISDICTION TO SIGN ITS NOVEMBER 21, 2014 “ORDER ON MOTION TO RECONSIDER ORDER TO TRANSFER VENUE,” AND ACCORDINGLY MANDAMUS SHOULD ISSUE.

* * *

D. When an order is void, the relator need not show that it lacks an adequate appellate remedy, and mandamus relief is appropriate.

E. The Court of Appeals should grant temporary and mandamus relief in order to avoid waste of judicial and party resources in a trial court that has lost jurisdiction, issue a writ of mandamus staying all further proceedings and discovery in the Fannin County trial court, and direct the trial court’s clerk to physically transfer the file to the transferee court.

Because the Respondent’s November 21, 2014 “Order on Motion to

Reconsider Order to Transfer Venue” was void, Relators need not show prejudice or

negate laches in order to obtain mandamus relief. See In re Chester, 309 S.W.3d at

718 (“laches is not applicable when the order subject to the mandamus proceeding is

void”) citing Zimmerman v. Ottis, 941 S.W.2d 259, 262 (Tex. App. —Corpus

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Christi 1996, orig. proceeding) (“Since mandamus relief in the present case is

premised on the entry of a void order, it would not serve the interests of justice or

those of the parties to invoke laches as an excuse to ignore that order, and thus to

allow the parties to expend further time and effort in connection with a lawsuit that

must ultimately be dismissed by the [trial] court or reversed on appeal for want of

jurisdiction.”). However, even if a prejudice showing were required, the Relators

would meet it in that absent emergency and mandamus relief, the Relators (as well as

the Plaintiffs / Real Parties in Interest) will have to engage in discovery and prepare

for trial in the Respondent’s court, which lacks jurisdiction. See id.

Accordingly, and contemporaneously with this Petition, the Relators have

sought an emergency stay from the Court of Appeals. A court of appeals may grant

temporary relief pending its determination of an original proceeding. TEX. R. APP. P.

52.10(b); see also In re Lumbermens Mut. Cas. Co., 184 S.W.3d 729, 730 (Tex.

2006) (orig. proceeding). In the present case, a stay of all litigation events and

discovery relating to the Plaintiffs / Real Parties in Interest’s case is necessary to avoid

waste of judicial and party resources, ensure compliance with mandatory elements of

the Texas Rules of Civil Procedure,1 and preserve the transferee Court’s jurisdiction

1 See TEX. R. CIV. P. 87 (“The determination of a motion to transfer venue shall be made promptly by the court”) and TEX. R. CIV. P. 89 (“If a motion to transfer venue is sustained, the cause shall not be dismissed, but the court shall transfer said cause to the proper court; and the costs incurred prior to the time such suit is filed in the court to which said cause is transferred shall be taxed against the plaintiff. The clerk shall make up a transcript of all the orders made in said cause, certifying thereto officially under the seal of the court, and send it with the original papers in the cause to the clerk of the court to which the venue has been changed.”) [emphases supplied]

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to consider the merits of the case. See In re Lumbermens, 184 S.W.3d at 730; see

also In re Reed, 901 S.W.2d 604, 609 (Tex. App.–San Antonio 1995, orig.

proceeding).

CONCLUSION AND PRAYER FOR RELIEF

Accordingly, in order to avoid waste of judicial and party resources in a trial

court that has lost jurisdiction, the Relators respectfully petition the Court of Appeals

for a temporary order staying all proceedings and discovery in the Fannin County

trial court pending resolution of this Petition for Writ of Mandamus, and upon

consideration of this Petition, for a writ of mandamus staying all further proceedings

and discovery in the Fannin County trial court and directing the trial court’s clerk to

physically transfer the file to the transferee court.

WHEREFORE, PREMISES CONSIDERED, Relators respectfully petition the Court

of Appeals for the temporary relief requested in their contemporaneous Motion for

Emergency Stay, and for mandamus relief as requested in this Petition.

Respectfully submitted,

ROBERT G. HOGUE, P.C.

By: s/ Robert G. Hogue State Bar No. 09811050

4514 Cole Avenue, Suite 600 Dallas, Texas 75205-4193 Phone: (214) 559-7107 Fax: (214) 559-7101

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LAW OFFICES OF CHRISTY LEE, P.C.

By: s/ Christy L. Lee

Texas State Bar No. 24052302

777 Main Street, Suite 600 Fort Worth, Texas 76102

ATTORNEYS FOR RELATORS / DEFENDANTS KENNETH VERN GIBBS AND CANDACE GIBBS WALTON

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above Motion has been served on the Respondent, the parties and counsel listed below, on this 12th day of January, 2015, as indicated:

Honorable Laurine J. Blake Via USPS next-day mail 336th Judicial District Court 101 E. Sam Rayburn Drive, Suite 200 Bonham, Texas 75418

RESPONDENT

Mr. T. Scott Smith Via email per Rule 11 Agreement Attorney and Counselor at Law 120 S. Crockett Street Sherman, Texas 75090

ATTORNEY FOR THE PLAINTIFF / REAL PARTIES IN INTEREST

Howard Kirk Gibbs Via email per Rule 11 Agreement 9929 Crawford Farm Drive Fort Worth, TX 76244

DEFENDANT, PRO SE s/ Christy L. Lee Christy L. Lee

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VERlFICATION

BcforL' me, tlw undersigned notar~·. on this da~' perso nally appeared Christy L.

Lee, the affiant. a person whose identity is known to me . After I adm in istered an oath to affiant, affiant tcstificJ:

M:v name is Christy L. Lee. I am over 18 _vcars of age. and am competent to mah· this affidavit. I have personal knowledge of the facts set out in this affidavit, and they arc all trtt\.' and correct. I ;1111 an attorney who is lil"cnsed to practice law in l he Stale of Texas. I am coun sel of record for th e Relators I Defcnuants in th is litigation. Th e facts in this Petition arc within my personal knowledge and arc tru e and correct. /\11 of th e documents attached in the Appendix arc true and correct copies, and the transcripts of the two relevant hearings conduct eJ in the trial court below arc trlll' and accurate transcripts oft hose hearings.

Christ v L. Lee

STATE OF ALASKA § § THIRD JUDICIAL DISTRICT §

BEf-01~[ ME. the undersigned authority. on thi s date persona ll y appeared Christy L.

Lee, known to me to he the person whose name is subscribed to t he foregoing in strument, a nd swore anJ m:knowlcuged that he executed the same and that the s tatements contained therei n arc with in he r personal knowledge and arc lruc and correct.

TO CERTIFY WHICH WITNESS MY HAND AND SEAL OF OFFICE on this 'Hi_ Ja:· of Januarv. :w I 5.

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APPENDIX

CIVIL DOCKET Cause No.: CV-14-41665 Court: 336th District Court Kind of Action: Contract - Other File Date: 04/01!2014

STYLE OF CASE PENTEX FOUNDATION VS. KENNETH VERN GIBBS AND CANDACE GIBBS WALTON AND HOWARD KIRK GIBBS

Attorneys:

Jury Demanded b y : - - - - - - - - - - -

Plaintiff: John Skotnik Jury Fee Paid o n : - - - - - - - - - - - -

Paid by: _ _ _ _ _ _ _ _ _ _ _ _ __ Defendant:

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STYLE OF CASE PENTEX FOUNDATION VS. KENNETH VERN GIBBS AND CANDACE GIBBS WALTON AND HOWARD KIRK GIBBS

Attorneys:

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Plaintiff: John Skotnik Jury Fee Paid o n : - - - - - - - - - - - -

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Date of Orders ORDERS OF COURT Mo. Day Year

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STYLE OF ('ASE PENTEX FOUNDATION VS. KENNETH VIiRN G!l3BS AND CANDACE GIBDS WALTON AND HOWARD KIRK GIBBS -:============================================T========================= Attorneys:

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CIVIL CASE lNFOR1\1ATION SHEET

CAUSE NUMBER (FOR CLERK USE ONLY): C:>! J t4 4l (c2.La:.S COURT (FOR CLEUK l!SE ONLlj: ~ r?.

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STYLEDPENTEXFOUNDATIONVKENNETHVERYGIBBS,CANDACEGIBBSWALTON,ANDHOWA@-I<IR~.~BS (e.g., John Smith v. AllAmecican Insurance Co; ln re Mary Ann Jones; In the Matter of the Estate of George Jackson) ~ ·· -")• "'\ ·;.o ;_ • '

A civil ca.qc information sheet must be completed and submitted when an original petition or application is tiled to initiate a ~k I~ health case or when a post-Judgment petition for modification or motion for enforcement is filed in a family law case. The · be~ best the

Name: Email: Plaintitf(s )/Petitioner(s ): ,T(]hn Skotnik Pentex Foundl!ction Address: Telephone: P.O. !Jox 727 903-640-4300 Additional Patties in Child Support Case:

CityiStatc/Zip: Fax: Defendant(s )!Respondcnt(s ):

Custodial Parent:

Donham, TX.7?_1!] 903-640-4344 Kenneth Very Gibbs Non-Custodial Parent:

State Bar No: Candace Gibbs W~lton 18475150 Howard Kirk Gibbs Prestuned Father:

Debt!Conrract IIJconsumer!DTPA Coudemnation

l

fljoebt/Contract artition li]Fraud/.'vf isrepresentation Malpractice uict Title l[iother Debt/Contract:

f

cotmting respass to Try Title ~pecific perfonnance ega! Other Property;

Foreclosure edical orne Equity-Expedited her Professional her Foreclosure Liability: _ _ fi!Moto~· Vehicle Accident llfjprcmtscs Product Liabihly Foreign Judgment li!IAsbestos/Silica

i

abea.• Corpus IIOther Product Liability Trune Change List Product:

roteclive Order cmoval of Disabilities of Minority IIJOther: _ _

Competition

I

Code Violation• Foreign Judgmerrt Intellectual Property

Probate/Wills/Jnte.llateAdministrafion

E

epcndcnt Administration ndependent Administration thcr Estate Proceedings

PENTEX FOUNDATION Plaintiff Vs.

VERV KENNETH VER¥ GIBBS CANDACE GIBBS WALTON HOWARD KIRK GffiBS Defendants

ORIGINAL PETITION

COMES NOWt PENTEXFOUNDATION, Plaintiff, herein also "PENTEX", through its

attorney John Skotnik, and files this suit for specific performance of a contract, and Tortious

Interference with that Contract, against Kenneth Vern Gibbs, Candace Gibbs Walton, and

Howard Kirk Gibbs,; and, would show the honorable court as follows:

DISCOVERY CONTROL PLAN

Plaintiff intends that discovery be conducted under Discovery Level 2.

PARTIES

1. PENTEX FOUNDATION is a not for profit private foundation formed and operated

under the laws of the Republic of Panama, Central America. PENTEX does not have an office

within the United States, but will accept service for this cause only through their attorney, John

Skotnik, Bonham, Texas.

2. Kenneth Vern Gibbs is a resident of Texas whose address is 4212 Wheeler St., Ft. Worth,

Texas 76117, where service may be made.

3. Candace Gibbs Walton is a resident of Texas, whose address is 500 Logan Drive in Azle,

Texas 76020, where service may be made.

7 1 4. Howard Kirk Gibbs is a resident of Texas whose address is 4360 Western Center Blvd.

#205, Ft. Worth, Texas 76137 where service may be made.

JURISDICTION AND VENUE

5. The subject matter in controversy is within the jurisdictional limits of this Court.

6. The Court has jurisdiction over the parties because the Defendants are all Texas residents.

7. Venue is proper in Fannin County, Texas per Texas Civil Practice and Remedies Code§

15.035 (a), as the Defendants herein agreed in writing that:

a. The contract was perfonnable only in Fannin County, Texas; AND

b. Any dispute would be resolved in the courts of Fannin County, Texas.

8. Furthermore, because venue is proper as to one Defendant, venue for this action with

respect to all Defendants is proper under § 15.05 Texas Civil Practice and Remedies Code.

RELEVANT FACTS

9. On or about the lOth day of May, 2005, an agreement entitled ucontract for Sale of

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

of Bert Hughes (iibb.tt, Kathryn a Gibb~; and/or the Mary L. Houseworth Trust(s) ",

hereinafter "Contract", was entered into between Albert Lynn Barcroft ["Barcroft"), Kenneth

Vern Gibbs ["Ken"], Candace Gibbs Walton ["Candy"], and Howard Kirk Gibbs ["Howard"].

The Contract was memorialized, executed and entered into the public record of Denton County,

Texas, on or about May 24, 2005 as document number 2005~61443. A copy of the Contract

(consisting of 9 pages) is attached hereto as Exhibit "A", and is incorporated by reference for

herein for all purposes.

8 2 10. On or about June 5, 2008, Barcroft sold his interests under the Contract to RENHAW.

On or about June 6, 2008, that sale and transfer was executed and filed in the public record of

Denton County, Texas as document number 2008-62063.

11. Subsequently on or about June 20, 2008, RENHAW transferred its rights under the

Contract to its parent organization, PENTEX FOUNDATION, Plaintiff herein, in a private

assignment

12. Under the provisions of the Contract, Ken, Candy and Howard each sold Barcroft 30% of

their inheritance from the estates and all related interests of both their father and mother for the

consideration therein. 1

13. Under the terms of the Contract, a business organization was to be created2 solely to help

facilitate the terms of the Contract.

14. The Contract also provided that any party could demand a split of the assets out of the

business organization at any time3 .

15. Under the terms of the Contract, Barcroft would be liable for the expenses of one attorney

to pursue a favorable settlement in the probate of Ken, Candy and Howard's father and mother.

Barcroft would be solely responsible for paying for the attorney out of his own pocket

16. Under the terms of the Contract, if Ken, Candy and Howard hired any other attorneys,

they would be solely responsible to pay those attorneys for whatever fees the attorneys charged4 .

1 Contract, page 1, l't para:" ... is a contract for sale ofthirty percent 30% of all land, mineral rights, royaltie,'l, and any other monies or assets which Gibbs, or any ofthe three individuals referred to collectively as "Gibbs" in this ugreement, receives, or is due, from thi..f date forward, either collectively or individually, a.'l a result of any inheritance or estate proceeds, or any other property a.~sets receivedfrom any trust(s) or transfers from Bert"Hughes Gibbs and/or Kathryn G. Gibbs at any time, past, present, or future; including, but not limited to, the following •.• " 2 Contract, page 4 Nnmber 5: "It is hereby agreed that there shall be a business organization, the exact type to be agreed upon at a later date, created by the parties hereto,· and, that aU reve11ue of any killd received from any of the property and/or assets covered herein shaU he deposited into a hank account in that entity's 11ame... the onlv (unction o{said business organizatio11 shall he to facilitate the agreement in this contract..• " [emphasis added]

9 3 17. Sometime in September or October, 2008, a business organization known as GWB

Family and Friends Trust ["GWB"], a purported trust, was created in compliance with the terms

of the Contract to "help facilitate the terms of the contract".

a. Plaintiff has been unable to establish a date certain because Plaintiff has been unable to

locate an original trust document that is signed and executed by the parties.

b. Plaintiff has seen at least three different copies of trust agreements, but none were

properly executed.

c. If GWB is, in fact, a trust, it is a revocable trust pursuant to the terms of the Contract.

18. Sometime in September, 2008, an agreement was reached by all interested parties as to

how the estates of Bert Hughes Gibbs and Kathryn Houseworth Gibbs [Ken, Candy and

Howard's father and mother] would be divided up.

19. The agreement was called the Family Settlement Agreement ["FSA"}, and it set the

terms and conditions, as well as the respective shares due each heir, for the probate and disbursal

of both estates.

20. All parties, including Ken, Candy and Howard, agreed to and signed the FSA.

21. The agreements contained in the Contract, subject of this suit, are recognized and

confirmed in the FSA5.

3 Also on page 4 at no.5: "Any party may demand a split ofthe as.ret.-; of said business organization at any time."

4 Contract, page 2, section (c): "Barcroft will provide legal counsel by acquiring a single licensed attorney for any reasonable and prudent actions necessary to the collecting of the funds from the sources stated herein; however, should Gibb.r, or any ofthe individual Gibbs, feel that theirlhi.~er interests are notproperly served by the one attorney Barcroft provides, that party wiU he responsible for the legalfee.~ ofany other attorney hired by Gibbs, or any individual Gibbs, to protect their/his/her individual interests." 5 FSA, page 33, section 3.25 (c): "Ken, Candy, and Howard Kirk represent that they have assigned an interest to AI Barcroft, who approve.<> and ratiftes aU ofthe terms andprovisions ofthis Agreement as represented by hi.r execution ofthis Agreement. The Parties agree that the interest ofKathryn and the interest ofKip, respectively, is not and shaU never be affected or reduced in any way because of any as.vignment ofany interest made hy Ken, Howard Kirk or Candy to Al Barcroft or any other person and that any such assignment shan only affect or reduce the interest ofKen, Howard Kirk and/or Candy in any Property covered hy this FSA ."

10 4 22. The FSA also restates the fact that Ken, Candy and Howard are solely responsible for any

attorney feei; thereby confirming that provision in the contract.

23. In August, 2013, Plaintiff learned that attorney fees that were agreed would be paid by

Ken, Candy and Howard had actually been coming out ofPlaintiff's share all along.

24. Under the terms of the FSA, Ken, Candy and Howard were each awarded 25% of both

their father's and mother's estates, totaling 75% of the total of the combined estates.

a. Each had previously sold 30% of their share to Barcroft under the Contract; meaning that

Barcroft, or his assigns, had an unmitigated interest in the combined estates of 22.50%

[30% of75%].

25. Through agreement and instruction from Plaintiff, the estate attorneys assigned 2.46% of

Plaintiff's 30% share; leaving 20.04% belonging to Barcroft or his assigns [22.50% less 2.46%].

26. Pursuant to the Contract, Ken, Candy, Howard and PENTEX [assignee of Barcroft's

interests] all assigned their entire share to GWB.

27. Unbeknownst to Plaintiff until October of 2013, the contingency fee attorneys were

deducting their fees from the total due PENTEX, Ken, Candy and Howard, then issuing one

check to GWB.

a. The result is that Plaintiff has paid over a million dollars in attorney fees that were due to

be paid solely by and from Ken, Candy and Howard.

28. When Plaintiff learned of this error, it immediately moved under the terms of the original

Contract to demand a split of the assets of the business organization.

6 FSA, page 22, section 3. I 5A:"Attorney's fees ofKen, Candy and Howard Kirk. Parties acknowledge and agree that Ken, Candy and Howard have incurred with their attorneys, attorney's fees and expenses based upon a contingency fee contract of 50% ofthe amounts recovered and distributed to dlem as henejiciarie.v of the Et.tates of the Decedent and the Ward. The Parties agree that all attorneys' fees paid or owed hy Ken, Candy and Howard Kirk shllll he horne by and shaU be the sole obligation ofKen, Candy and Howard Kirk and shall be paid solely /~~"

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29. Demand was made upon Beverly Miller, the trustee of the purported GWB trust, to divide

and distribute to PENTEX [or its assign] its 20.04% of the assets from the estates.

30. Miller examined the demand and decided that it was a valid demand; where upon, she

transferred enough property to equal 20.04% of the estate distribution to GWB [mineral

interests] out of the property received from the estates, to a trust designated by Plaintiff

31. Ken and Candy hired an attorney, to try to take back the share rightfully due PENTEX.

32. The attorney for Ken and Candy also contacted the gas companies, with which PENTEX

and others do business, by letter, tortiously interfering with the contracts between Plaintiff and

the various oil companies; all in the name and at the command of Candy and Ken.

33. As a direct result of the frivolous contacts made to the gas companies by the attorney for

Ken and Candy, the gas companies discontinued payments of royalties rightfully due PENTEX.

DAMAGES

34. The actions on behalf of Ken and Candy have damaged Plaintiff by causing business

associates to discontinue doing business with them, stop paying them money due under contract,

and generally distrust them.

35. PENTEX is being unjustly denied its money and assets all because of groundless,

unproven, and false accusations made on behalf of Ken and Candy, both in conversation and in

writing.

36. Defendants' actions amount to Tortious interference with the Contract, subject of this

suit.

by them ... These Attorney'sfees will only he paid out of the percentage share allocated to Ken, Candy and Howard at the time ofadual distribution to them.

12 6 37. Plaintiff has had over a million dollars of money rightfully due Plaintiff taken by Ken,

Candy and Howard to pay the attorney fees that were due to be paid only by Ken, Candy and

Howard under written agreement, i.e. the Contract here.

38. In addition, under the terms of the Contract, Plaintiff was to receive 30% of all proceeds

from any lawsuit involving Ken, Candy and Howard. At the time the Contract was agreed to and

executed, there was an Abstract of Judgment filed in Denton County [Document Number 2008-

38029] against Ken, Candy and Howard in the amount of $911,252.87 plus $149,546.34 in

interest, in favor of Kip H. Gibbs as NEXT FRIEND FOR Kathryn Houseworth Gibbs.

a. As a result of Plaintiffs efforts, that judgment was retired.

b. It is therefore proceeds from a lawsuit, and Plaintiff is entitled to its 30% share, equaling

$318,239.76.

SPECIFIC PERFORMANCE

39. Plaintiff has a right to performance under the Contract. Plaintiff has honored every

consideration placed on it by the Contract; and, now, Plaintiff has a right to the consideration

promised it.

40. P1aintiffwould ask the court to order that the provisions of the Contract be fully enforced

without delay; and, that the proper gas companies be notified of the action.

41. Plaintiff's only offense was in utilizing a provision within the Contract to withdraw its

money and assets from a situation in which Plaintiff has been taken advantage of and stolen from

since the outset.

42. Plaintiff asks the court to grant specific performance under the Contract without delay.

CONDITIONS PRECEDENT

43. Plaintiff avers that all conditions precedent have occurred prior to filing of this suit.

13 7

EXEMPLARY DAMAGES

44. Plaintiff would further show that the acts and omissions of Defendants, Ken and Candy,

complained of herein were committed knowingly, willfully, intentionally, with actual awareness,

and with the specific and predetermined intention of enriching said Defendants at the expense of

Plaintiff In order to punish said Defendants for such unconscionable overreaching and to deter

such actions and omissions in the future, Plaintiff also seeks recovery from Defendants for

exemplary damages as provided by Section 41.003(1) ofthe Texas Civil Practice and Remedies

Code.

OTHER RELIEF REQUESTED

45. Specific Performance: Plaintiff seeks specific performance of the Contract as alleged and

as will be proven.

46. Declaratory Judgment: Plaintiff{s] request[s] that declaratory judgment be entered under

Chapter 37 of the Texas Civil Practice and Remedies Code, declaring the Contract between

Plaintiff and the Defendants as parties to contract, valid and enforceable under the laws of the

State of Texas.

47. Restitution: Plaintiff requests that the Court enter an order requiring Defendants to pay

restitution to Plaintiff.

ATTORNEY'S FEES

48. Request is made for all costs and reasonable and necessary attorney's fees incurred by or

on behalf of Plaintiff herein, including all fees necessary in the event of an appeal of this cause to

the Court of Appeals and the Supreme Court of Texas, as the Court deems equitable and just, as

14 8 provided by Chapter 38 of the Texas Civil Practice and Remedies Code and Section 37.009 of

the Texas Civil Practice and Remedies Code, amongst others.

ALTERNATIVE ALLEGATIONS

'49. Pursuant to Rules 47 and 48, Texas Rules of Civil Procedure and the rules of pleadings,

allegations in this petition are made in the altemative.

PLAINTIFF HEREBY DEMANDS TRIAL BY JURY I!

PRAYER

WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that the Defendants be

cited to appear and answer herein, and that upon a fmal hearing of the cause, judgment be

entered by this Court for Plaintiff and against the Defendants for the following:

A. All actual damages; but, in any case, no less than one million dollars

[$1,000,000.00];

B. Restitution in the exact amount that has been unjustly taken from Plaintiff by

defendants and used to pay Defendant's legal fees;

C. Judgment against Defendant's for $318,239.76 plus interest as Plaintiff's share of

the proceeds from the Abstract of Judgment referenced herein;

D. Declaratory judgment at the earliest possible time to determine the proper

ownership of the mineral interest put in dispute at the oil and gas company level by

baseless letters from the Defendants;

E. Specific Performance

F. Grant any other relief to which plaintiff has shown itself entitled both at law and

in equity, whether pled or unpled.

15 9

B ham; Texas 75418 (903)640-4300 * FAX 640-4344 Attorney for Plaintiff, PENTEX FOUNDATION

16 10

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C():ntracr for Sale of Lsntd, Mineral Rigbl$ aad Royalties.

an~ aU <Jtber Assets or Monies Rec~ived f~m the Est._re of Bert Hughes Gibbs. Kathry.. G. Gibbs. audfqr ~he Mary L Houseworth Tr•si(s) or "Tbe Kathryn Uousewortb G.ibb5 I trevotitble Trust"

This agreement between Al~ert Lynn Ratcrofi, hereinafter •~Barc:roft'\ and Kenneth Vern G1bbs, Cancjace Gibbs· Walton. an<.t Howard Kirk G•hbs, hercinallcr collectivt;ly also ..Gibbs'', is a contraCt for salt or tbirty pei'tent Jo•;,.. or all land, mineral rlgktt, ro)'attie:s; aad any utbtr moaies: or assets wbidi Gibbs, or any of the three mdividuals referred to coltectlvely as. "G1bbs" 111 this agreement, rece1ves. or is due, from th.is date (orWard, either collecttvely or indiVidually, as a resull of any inheritance or e~tate proceeds, or any other property ass:ecs received from any trust(s) or transfers from Bt:n Hughes G1bbs, Mary L. Houscworlh. andl()r K:athryn G. Oibb~ at any umc, past, prescm. or future~ includmg, butnol limited IQ. the following;

a) All pr~eeds (rom the Estat~ ofBet1 Uughes dibb~ .. aod,•o.r;

bJ All property andJut assets'ofanykind which ate received liS a resLtlt of any pastor fuh1re tral'tsfercnce fr:om Bert Hughes Gibbs, Kathr}ll G. Gabbs; or any trust to which Gibbs~ or any of the indi\'tduals referred 10 co.IIecltvdy as "Gibbs" m this agreement, are bencfidary~ andior.

~) All mheritan~~ of a!JY ·~i~d a.r~d tn any fonn by Oibbs, or any of the tndividuals referred .to coHecti ...·clyus "Gibbs'' in thi11 ag~emcnt~ ~&or;

dJ All proceeds from any .lawsu11 which cum::ntly extsts. or. may 411't$C, becauk o!j or tn connectron with,. the rtlattonshlp(5) with Ben Hllghts Gibbs, Kathryn d. Gibbs, Kip ftu!PJes Gibbs, Sandra Fayi: Gibb$, ''The Mary L. Houseworth Irrevocable irusf'. ''The Kaihryn Houseworth Gibbs Irrevocable Trusf·, ~d ~Y othet lru.!;&{sJto whtch dtbbs art: bencficiary{ies) or trusi~ll) 1n any fofut; Mid/or,

e) ~~~ pto~rtY and/ar asset~. whi'h. r11ay h;tv~ bL-cn preVtoi.tsly pas:sed to them hy Bert Hu~ Uilihs, Kathryn U. Gibbs. "The MILt}' L. Houseworth Irrevocable Trust", amllor"Th<; Kalhryn Hou~Mrth Oib~ hrev()Cable 1ru$1''; ~dior,

l) AU o'her property and/or iissets pasSed to G)hbs. or any oOh~ jndi'-~iduaJs rc(emd.

lo• cQ.Uecnvel)' a$ ..Gibbs" Jri th1s Jgreentent, trom any source Involving Ben. Hug~cs Gibbs. Kalhryn 0. Gibbs, ''The Kathryn Houseworth Gibbs lrrcvoc~le.

(:unt•iKI (tlf..$al~of.L~n<O•mcr~j ~•1111!~. Ro·)~lllcs alld Olh¢1 A~r. ;Ond•Or MiMitC<.

1 lmti~ats·of _A~ ~II p..tt~ ~ k,.J./' Ald.·.

:'fr _ c.iQle

Trust'~. and/or ''The Kattuyn How;ewQrth Gibb~ lrttvocab'e Trust"; or, -.ny (lther trust(sJ or business organltation(s) of any kirid, which might be uncovered or discovered in the futore; andior.

g) All property a:nd!br olhet assets in any trust or former trust; and. any pr()perty or other assets in any corporation. 'lhnited liability compatry. partnership(s), sale propnetorship(s}, or any other busmess orgamzation o( any kind in which one or more. of the Gibbs are <;>wners. trustee(s) or t)eneficiary(•es), b.J Specifically cxempte4 from this agrecnt~nt are ;my p.ropcmes andior other assets whi~h are currently u11der the full control of Gibbs,. or any of the .individuals referred to coll¢ethdy as "Gihbs" m th1s agreemeill~ proovillcd. howe,·er; thai if any legal work IS required to aid in the coll«tion of said assets. or the sale or control of said property, then said propeny or other assets shall be subject ro the lt!rms, conditioos. ~d con~i~erations set forth within lhis agreement as p;u.t pf the property artdior assets li~led above. artd shall have n<> exemption to the tenns and considerations. of this agtecrnet\1. Also exempted from this agreement are any persanal itetns that were passed. to ·Gih:bs from their father, which were not Included lll the divorce dislnbutionbe!Ween their mother and father ..

This sale of 30% of.all land, prqperty •lid other asseu deSCf'ibed herein .above shall be g.ovrned by tbe (c:~Uowing lerlft~o, toa.ai~lcna!i.t and ~ons'idnfltions:

1 Gibbs. or any of the individuals re(erred to collectively as ·'Gibbs.'' in this a.$fccment, shall giv~ their/hi~'he:r full c;()Opcration to all efforts by B~c.roft to coH~<:l any of me: funds referred to m th1~ .agreement. Sii.id ~Qoreranon shall.include •. bui not be hnlited. to, providing ne~essary mfonnation .and 4ocumemauon. beil)g available to gwe ttstimony, and glv&n.g full suppQrt t~' the o.vetall c:ffort of .;Qitectin,g fUo(ls and..l1S$r:!ts rrom the sourcts stated herein.

2. An>· pariy hereto shall have.tlle righr ro. order: a complete tnvenrory ohU propeny and oih~r ass~ls described her¢tn at 3fl) tinte, and all panies agree to prov1de full ¢09peration lo such an effort. Any costs sh;sJI be born by the party requesting the mventory.

l\•nlr:U:lfQr ::>.trc t)rUnd, Mti1Ci'lll Rtghh. lh•yal11c1 ~lid Ot~r·•A!i!lds and/01'. M~n1r'

J. As full considc::ralion; Barcroft agrees to provide, orhas providal, the following:

a} Qarcrofi has pard to Gibbs .a total of twenty·onc:. (21) silver dollars minted by the Umled Suues Mint, photocopy <lfsaad coms attached· hereto as Exhibit .. A" ..and rncorporaled heretn for all purposes as real consaderatlon under this agrt:emenl; and Gibbs hereby a-cknowledges rcceipl of same with this SJgning; ~;

b) Barcroft wiU provtde his services. knowledge and best efforts in: the pursuit of all available tund((., propeny. artd/or other assets from the sourcessrated herein; and,

c) Barcroft, at hts expense. wall provtde legal counsei by acquiring a licensed attorney for any reasonable and pruden, acHons necessary ~o lhc co:tl~ting of (he futlds: from the sources stated .herein; how¢ver. shot~ld Gibbs, or any of ahe. indtVidu~tl Gibbs, feel that their/his/her interests are not properly served by the

atlomey Barcroft provides, that pany wtll be responsible for the legal fees of any other attomey(s) hired by Gibbs, or any individual Gibb$'. to protect theirlblslher indivtdual interests. In that event. it Is agreed by alt. 'Parties hereto that the attorney hired by Bar.croft wall reprtscnt only Barcrofl in all future, action(s). Furthemiore. tl ts sMci fically agreed that s~ud aUomey hired by Barcroft will represent only Rarcnif\ should a d1spute anse b~tween the pan1es hereto; and, Gibbs, mdividuatly and collectwtfy, agree not to claim conflii:t of interest should said attorney r~res~ru Barcroft in a conflict betw~n th.e panie~ her~to; and. Gibbs. collectively and. ind1vidually, hercll}' wai\'e theitlblSlhcr right ro t:Jaim conflict of interest Wtlh regards to saad attorney ui such instance.

4. It 1s understood and agreed that Gibbs may caned or nullify this: contract 9Jl!y under lhc following condifions:

a) f( GibbS: pays ()VC:r to B~~t¢roft ih,e sum 9{ five rntlli(Jn dollars. ($5.0(i0;000.00 [,1$)

in full, in arldition to any money rccejved pnor m said one time payment, as .hquidatcd damages and full settlement Clfafl consideration on Gibbs part.

b..) tfB.arcr{)fl vplu:ntarily abandons the effort to cQU~·t the fun4s from the So.urc~ stated. J;i~rem; ho·w~ver; ii1 th1s evtnt. Bar{;ruft shall re.t:ain ~U amniU:'If$ altc:adY recetvcd, and w1ll contmuc: to rt.'t.etvc any futun: proceed& from any of the prppei1Y or other ass~rs. and will r(!tain. his ownership imerest ui any property <.~lltur""'·' fii1 Silk !iflal'wli M~ncnil·lhghi~ R<~y•'iltc' andOthtr ~)S(I:t111'14/ilr t.fontt~ .;\ tmitllls oi'

al! 11..n~ ~· Jljl ·t:?t~f ~ A tf.n_J ~ ....W.

v•

_______ ____ 20 ...,._ ·- --

21

which is cqvered by this agreement and has been brought into the control qf Gibb~. or is paytng benefits of any kind at the time: of8arcrotl's abandonment; or, which is brought .into the control ofGtbbs; or start payin8 bcnefns al a later date, provided that said control or payments is a result of actions pnor to Barcroft's :abandon.m~m.

5. Jf Barcroft dies or becomes incap!lcitate4. the. c~mtract will remain in force:, and tJt~ ~sets wh1ch have been a~cessed and &~repaying atthi:i ttrrtt! of Barcroft'S: (l~ih. or whif;ltl

are later accessed. as a rcsi.llt of Barcroft'~ ~flo11s. will got() his heirs and assigns,

6 h is hereby agreed that there shall be a business organization. the ~xact type to be agreed upon at a hder date. created by the part1es· hereto; and, that aU revenue of any kind rc.;cived from any of lh~ property and!or assets covered h~rein shall be: dt-posited inlo a bank account in that entiiy's. name, anQ that all expenses necessary to. the continuation of reven~e beln~ paid to th~ pan.1~ h~to (t.e. propeny taxes on the royaltu:s or propeny covered herein. and any necessary expenses such as w~ll.upk=P~ etc.} shaH be deducted and paid as required bcfcire the 70130 division agreed ro 1n: thi~ c:ontr.tcl. aareroft shall have a SO% vote in lhe opetation of said bustness organizalton; and, the only function of said business organization shall b~ 10 facdltate the agreement in this contrac.t. Any monie.s paid out of said. business organizauon, other than the agreed upon split between the panaes, shall be agreed upon by all parties hereto~ The diV1s1on shall be divided on a basis of 30% lO !lar~roft. 23.:3.49/41 to Kennct~ Vem Gibbs, ~3.33%, to Cartdace W~hon

Gtbbs; and 23.33% to Howard Kirk Gibbs, at ~ach insta,nce of dispe""al to the p~a~.

Any party. rtHt)• demand .a. split of the assets of said business organizaljonl:l.t apytime. 7. If either P:lrtY should hreak •he terms of this agreemcni in any fashion. or auempt to render lhe contract mvalid, in any way which would require legaf action ..io i:Oriccl or enforce. the pariy found at timh. or the party fading to prevail. sbatl pay aU l¢g)ll expenses of ar1y type for hnnS<:lfthers.elf. and tbr (he prevailing party.

8 Thrs conlracr as wnlten to .~omply with the laws of the State of Texas~ and~ any proviston found hy a court ofcoilipetcnt juriSdiction to be in non-compliance shall be

{;L!f1UlCI t'oi Sale ot L:.:ilkl, Mmc,.. Rlghn·; Hoyaltlc~ and9th~r "'!id~ aniltor Moii•cs . 4 ~."tl .~:.a ~'.~:~ /2 • ...,.. .. ~. ~ •.· •· ..t~.

·... .•f ·.·• . 1..· If &d.· ~ ·-t~~

W

..

automattcally amended to comply with said laws in such. a manner as to keep the original intent oflht; provision it$ closcfyin place as possible. In no event shall any such findings on one pTOVISion a (feel any other pi'OVIS.IOfl WHhJn the contract.

9. Notwithstanding any other prov1ston under lhc law. it Is. ~xprtssly agretd that this contract shall be performable only in Fannm County, Texas; and. any dispute(s) will be resolv~:d m the. courts of Fannin County, Texas. The signing hereto ofthis conrraet by aU partrcs completes the sale of 30% ofallpropcny and assets of Gibbs to Barcrotl.

m ThiS agreement sh~ll h~ binding Oil :all tteirs and assigns ofthe panics heteto.

1I. l'o lien(s) ma:; be placed l.lPorrany of the property covt:red her~m unh:ss such lien(s) is/are agreed to by all parties her~to, rcducoo 10 wnting. and s1gned by all parti~ hereto before a notary pubtic.

12. All agreemems between the paT1ies hereto arc ~ontained in writing in this contract, and no verba! agreements shall be d~med \•alid unless contained in wnttng. herein. A II amendments her~to ril'ust be io writing,.and Signed by aJI parties befor.e a notary pubhc.

13, Alb.en Lynn Barcrot1. Kcnne1h Vern Gibbs. Catulace. G(bbs Walton. and Howard Kirk Gibbs. the princ1pal panies hereto, hereby agree lo this contract in its entirety without reservation:: and, each pledge never ro durl!enge the tenns, cot\ditiOn.s •.inl.entions, anfiior constderations und'er tht~ contract wtth then respective signing hereunder.

fQr' Sale of 1.-.nd,.Mt~al Rrsh•"· (Gt'lit<K:J Ro~~hll'Nn<f l)th>:r.l\~>~1> ~ndror "t.DOI.~.s

• 22

ACKNOWLEPGEM£~T

ST~T£ OF TEXAS Subscrjbed~ Sworn, -.ad Sealed COUNTY OF COLLIN

On thss I~ da}' of May •it the ye;u- 2005, Albert Lyaa Barcraf~ known to me, d1d personally appear before me• and. al\er £a~ing the oaitr, (}epo~ anJ says that he 1~.1he milll -...hu executed the for~go1ng ins1rumen1; and. funher st•ucd rhal ht: c:~t:Qu\cd the same: as hrs free and mformcd act and l!eed fqr (he piJrpt)~s sla.l~ therem.. and wilh .a fUll understanding o{th~ scope of the provisions coniatned therCin~ and, lhathc a 0 a ide by alJ said proVISIOllS .

.----- ·.

, Subscribed and sworn tl\ hefore me 1h1s 1(11hday pfMay in the year 2005.

. ..

·e·~ ttJ'-:li~ RUBtR• .-ENEZ .NOTARV.·. ·PU&IC . · • STAT£OF·TE~~S.

" · · Mt Comm. '-11· n.OB·Oa

.Subscribed. Sworn, litd Sealed COl.JNTY OF COLLIN On th~s 101h uay of May 1n the y~r 2005, ~e,.neth V~ta Gib~ l;nown 1o me, did personally appear ~t()re me; a1id, after taking th.e oalh. depose!> and says thai he is the miln who c:l(e.,:uted the foregoing instrument: .anti, further stated thai he executed the same as his free and mfomJed act and deed for the pu.I"(''Qses stated lht:rem. and with a full unders1anding of the scupe c;f the provisions coniamc:d I herem: and, that be agrees to ahide by all satd provisiOns.

£( .JI 7/~· . .hi# ~ K~nneth Ven1 :Gibbs -·--~-

..

Subscribed and sworn to bcilorc me thi~ l01h day of May in the year 2005 .

S4l¢ Of UtloCkM.rMt~l RtKiii~.

{;omr.;.(l f(\1 6 R~y•lllcs ~rod Othor A»<:ili •~! 1\,Ji>nrt;

23 -------------.. ---·

24

STATK OFTE.XAS Substrlbed. Sworo. and Selifed COUNTY Of' COLLI.~

On this I o"' ~~y of May· in the year 2005. C•ad•ce GJbbJ Wattoa~ .~Wt:J to me, did personally appear before· JTJe; and, after takang the oath, deposes and says that she Is tb~ woman wh<l ~xecutC(f the foregoin~ in$trumcn~; ;ltld, further suned that$b~ cxec.uted th~ s~c iiS her fr=. and Informed. ac;t and deed tor the purposes stated therein, and With OJ .fuJI undeMilanding of the ~ope ~f the provlstans contained therein; and.lhat sh;: agr~s to abide by aU said·provi$ions.

JJ. . Ai _ • ,." J.~-nr -~ ~~ Candace Gibbs Walron ·

Subscnbtd arid sworn to betoreme this to'h day of May an uwycllf 2005.

....

·12n~- R. n;N-Md ~My TATEOF.TE~ ~ ,.

a N*l;;;;n; th~Stat~·~·-

fN8ittJ-...ez.

.. . · NOTARY Pf.lallC for e~. n.oo.oa .S.

COirlrn.

STA Subscribed, Swora. •ad Srlilflf COUNTY OF COLI .IN

On rms Io'" day ·of May .In t~C year 2005, Hnward KJtk G4b~ k,nown to me, did persrinaliY: appear be tore· me; and. after ·taking .1be oath, depoSes arid sa)'s tnat be 1s tbe man who e"etuted the foregotng rnstrumem:, and. (unher stated that l:ie' executed the same as ·his free and n'lfotmed acr and deed for lhe purposes stated tbcteJil. and \Vitb a fun undetsfattdittg of Ihe seopc of the provisionHontained \herein.; and, &hat he agrees to abide by all said provistons.

Subscribed and sworn to bdbre me 1tus 1 o"' day of May in .the year 2005 "' . ~·:.. -

Conua.:t (oi $.\lc ~rt.an~. M~ R!I!IM•. 7 R<.!},tlhcs il1l~ Otlic• As~is .1ndh.M:'Moo~~

25

·~~-~#f.~ I'!I .-::> cit.,F r ..

c(~j). ?J· p~ )( tJ?J?

7;e. t~·-~POo?, T:e )\Ct:J .

7So/9c;· c.~ . . D)

E;<t;'L~ .J '/¥'·;:

CITATION- personal service- TRC 99 AkJtorf'.UIJ ___.-

THE STATE OF TEXAS CAUSE NO. CV-14-4,65

PENTEX FOUNDATION VS. § IN THE DISTRICT COURT KENNETH VERN GIBBS AND CANDACE GIBBS WALTON AND § 336th JUDICIAL DISTRICT HOWARD KIRK GIBBS § FANNIN COUNTY, TEXAS

TO: Kenneth Vern Gibbs 4212 Wheeler ST Ft Worth TX 76117, or wherever he/she may be found DEFENDANT- GREETING

NOTICE TO DEFENDANT: "You have been sued. You may employ an attorney. If you or your attorney do not file a written answer with the clerk who issued this citation by 10:00 a.m. on the Monday next following the expiration of twenty (20) days after you were served this citation and petition, a default judgment may be taken against you." TRCP. 99

You are hereby commanded to appear by filing a written answer to the Plaintiffs Petition at or before 10:00 o'clock A.M. on the Monday next after the expiration of 20 days after the date of service of this citation, before the Honorable 3361h Judicial District Court of Fannin County, Texas, at the courthouse in said County in the City of Bonham, Fannin County, Texas. Said Plaintiff's Petition was filed in said court on the; 1st day of April, 2014 in the above entitled cause.

The nature of Plaintiff's demand is fully shown by a true and correct copy of (OCA) - Original Petition - New Cases Filed accompanying this citation and made a part hereof.

Issued and given under my hand and seal of said Court at Bonham, Fannin County, Texas this 3rd day of April, 2014.

Attorney for Plaintiff or Plaintiff: Clerk of the Court: John Skolnik, Nancy Young, District Clerk Attorney at Law 101 E. Sam Rayburn Drive, Suite 201 PO Box 727 Bon am, Fannin County, Texas 75418 Bonham TX 75418

OFFICER/AUTHORIZED PERSON RETURN Came to hand at _ _ _ o'clock _.M., on the _ _ day of , 20_. Executed at (address)----:--:-:--:---:-:---:----:---;:--- --------:::-:::---------c:--:-:7-----c:------------- in County at o'clock_.M. on the _ _ dayof _ __ --:---:-:--:---' 20__, by delivering to defendant, in person, a true copy of this Citation together with the accompanying copies of the (OCA) - Original Petition - New Cases Filed attached thereto and I endorsed on said copy of the Citation the date of delivery.

[ ]~furma~onreccived~tothewhcreabou~ofdefundambcing~----~--------------------------- To certify which I affix my hand officially this _ _ day of _ _ _ _ _ _, 20_.

Fees .......... $_ __ Fannin County, Texas Service ID N o . - - - - - - - - - - - - - b y - - - - - - - - - - - - - - Sherifli'Deputy/Constable/Process Server

VERIFICATION On this day personally appeared known to me to be the person whose name is subscribed on the foregoing instrument and who has stated: upon penalty of perjury, I attest that the foregoing instrument has been executed by me in this cause pursuant to the Texas Rules of Civil Procedure. I am over the age of eighteen years and I am not a party to or interested in the outcome of this suit, and have been authorized by the Fannin County Courts to serve process.

Subscribed and sworn to before me on this the _ _ _ day of - - - - - - - - - • 20_ _ _ _ _ _ _ _ _ _ _ Notary Public CERTIFICATE OF DELIVERY BY MAIL- TRC 106 I hereby certify that on the day of , 20_, at o'clock _.M., I mailed to Kenneth Vern Gibbs 421<;.Whe~ler ST Ft Worth TX 76117, Defendant by registered mail or certified mail, with delivery restricted to addressee only, return receipt requested, a true copy of this citat.io·fiN 'y. of the (OCA) - Original Petition - New Cases Filed attached thereto. (Certified Mail Receipt and Green Card Attached) /~'0.i,'/ ~;.

i£4:/ \~<>\ ;1~, ~~~

- - - - - - - - - - - - - - - - - - - Deputy(!<td ~~,.:!\ i·'''' I~ 26 't-P\ '"'

';'~~~.~(j' ,, ";;," -~i\

27

CITATION- personal service- TRC 99 THE STATE OF TEXAS CAUSE NO. CV-14-41665

PENTEX FOUNDATION VS. § IN THE DISTRICT COURT KENNETH VERN GIBBS AND CANDACE GIBBS WALTON AND § 3361h JUDICIAL DISTRICT HOWARD KIRK GIBBS § FANNIN COUNTY, TEXAS

TO: Candace Gibbs Walton 500 Logan DR Azle TX 76020, or wherever he/she may be found DEFENDANT- GREETING

NOTICE TO DEFENDANT: "You have been sued. You may employ an attorney. If you or your attorney do not file a written answer with the clerk who issued this citation by 10:00 a.m. on the Monday next following the expiration of twenty (20) days after you were served this citation and petition, a defaultjudgment may be taken against you." TRCP. 99

You are hereby commanded to appear by filing a written answer to the Plaintiffs Petition at or before I 0:00 o'clock A.M. on the Monday next after the expiration of 20 days after the date of service of this citation, before the Honorable 3361h Judicial District Court of Fannin County, Texas, at the courthouse in said County in the City of Bonham, Fannin County, Texas. Said Plaintiff's Petition was filed in said court on the ; 1st day of April, 2014 in the above entitled cause.

The nature of Plaintiff's demand is fully shown by a true and correct copy of (OCA) - Original Petition -New Cases Filed accompanying this citation and made a part hereof.

Issued and given under my hand and seal of said Court at Bonham, Fannin County, Texas this 3rd day of April, 2014.

Attorney for Plaintiff or Plaintiff: Clerk of the Court: John Skotnik, Nancy Young, District Clerk Attorney at Law 101 E. Sam Rayburn Drive, Suite 201 PO Box 727 Bo am, Fannin County, Texas 75418 Bonham TX 75418

OFFICER/AUTHORIZED PERSON RETURN Came to hand at~~ o'clock _.M., on the _ _ day of 20_. Executed at (address)-------:--:--:----:-:---:~----=---::--- --------=--=----,.,.--------------in Countyat o'clock_.M.onthe _ _ dayof _ __ - - - - - - - ' 20_, by delivering to defendant, in person, a true copy of this Citation together with the accompanying copies of the (OCA)- Original Petition- New Cases Filed attached thereto and I endorsed on said copy of the Citation the date of delivery. [ ]Nmexecuwd.Thediligenceuseinfinilingdefundambcing _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _~

[ ] Information received as to the whereabouts of defendant being~------------------------------- To certify which I affix my hand officially this _ _ day of _ _ _ _ _ _, 20_.

Fees ........... $ _ __ Fannin County, Texas Service ID N o . - - - - - - - - - - - - b y - - - - - - - - - - - - - - Sheriff/Deputy/Constable/Process Server

VERIFICATION On this day personally appeared known to me to be the person whose name is subscribed on the foregoing instrument and who has stated: upon penalty of perjury, I attest that the foregoing instrument has been executed by me in this cause pursuant to the Texas Rules of Civil Procedure. I am over the age of eighteen years and I am not a party to or interested in the outcome of this suit, and have been authorized by the Fannin County Courts to serve process.

Subscribed and sworn to before me on this the _ _ _ day o f - - - - - - - - - ' 20_ _ _ _ _ _ _ _ _ _Notary Public CERTIFICATE OF DELIVERY BY MAIL-TRC 106 l hereby certify that on the day of 20_, at o'clock .M., I mailed to Candace Gibbs Walton 500 Logan DR Azle TX 76020 , Defendant by registered mail or certified mail, with delivery restricted to addressee only, return receipt requested, a true copy of this citation with a copy of the (OCA) - Original Petition - New Cases Filed attached thereto. (Certified Mail Receipt and Green Card Attached) -v~Nf#i'i;

<>:"', ...~"' ~--.,.,.

CITATION- personal service- TRC 99 THE STATE OF TEXAS CAUSE NO. CV-14-41665

PENTEX FOUNDATION VS. § IN THE DISTRICT COURT KENNETH VERN GIBBS AND CANDACE GIBBS WALTON AND § 336th JUDICIAL DISTRICT HOWARD KIRK GIBBS § FANNIN COUNTY, TEXAS

TO: Howard Kirk Gibbs 4360 Western Center BLVD #205 Ft Worth TX 76137, or wherever he/she may be found DEFENDANT- GREETING

NOTICE TO DEFENDANT: "You have been sued. You may employ an attorney. If you or your attorney do not file a written answer with the cl~rk who issued this citation by 10:00 a.m. on the Monday next following the expiration of twenty (20) days after you were served this citation and petition, a default judgment may be taken against you." TRCP. 99

You are hereby commanded to appear by filing a written answer to the Plaintiffs Petition at or before 10:00 o'clock A.M. on the Monday next after the expiration of 20 days after the date of service of this citation, before the Honorable 3361h Judicial District Court of Fannin County, Texas, at the courthouse in said County in the City of Bonham, Fannin County, Texas. Said Plaintiff's Petition was filed in said court on the; 1st day of April, 2014 in the above entitled cause.

The nature of Plaintiff's demand is fully shown by a true and correct copy of (OCA) - Original Petition - New Cases Filed accompanying this citation and made a part hereof.

Issued and given under my hand and seal of said Court at Bonham, Fannin County, Texas this 3rd day of April, 2014.

Attorney for Plaintiff or Plaintiff: Clerk of the Court: John Skotnik, Nancy Young, District Clerk Attorney at Law 101 E. Sam Rayburn Drive, Suite 201 PO Box 727 Bo annin County, Texas 75418 Bonham TX 75418

OFFICER/AUTHORIZED PERSON RETURN Came to hand at _ _ o'clock _.M., on the _ _ day of , 20_. Executed at (address)------:--:---:------::--,--------::------:---::---- --------=-----:---:-::---:------------ m County at o'clock _.M. on the _ _ day of _ __ - - - - - , - - - - - ' 20_, by delivering to defendant, in person, a true copy of this Citation together with the accompanying copies of the (OCA)- Original Petition- New Cases Filed attached thereto and I endorsed on said copy of the Citation the date of delivery.

1 )Notexecu~d.Thediligenceuseinfindingde~ndantbcing _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

I ]~furmationreccived~miliewhereaboumofdefundarube~-~----~-------------------------­ To certify which I affix my hand officially this _ _ day o f - - - - - - ' ' 20_.

Fees ......... $ _ _ Fannin County, Texas Service ID N o . - - - - - - - - - - - - b y - - - - - - - - - - - - - - Sheriff/Deputy/Constable/Process Server

VERIFICATION On this day personally appeared known to me to be the person whose name is subscribed on the foregoing instrument and who has stated: upon penalty of perjury, I attest that the foregoing instrument has been executed by me in this cause pursuant to the Texas Rules of Civil Procedure. I am over the age of eighteen years and I am not a party to or interested in the outcome of this suit, and have been authorized by the Fannin County Courts to serve process.

Subscribed and sworn to before me on this the _ _ _ day of _ _ _ _ _ _ _ _ _, 20_ _ _ _ _ _ _ _ _ _ Notary Public CERTIFICATE OF DELIVERY BY MAIL- TRC 106 I hereby certify that on the day of , 20_, at o'clock _.M., I mailed to Howard Kirk Gibbs 4360 Western Center BLVD #205 Ft Worth TX 76137, Defendant by registered mail or certified mail, with delivery restricted to addressee only, return receipt requested, a true copy o[ Ill~\' , citation with a copy of the (DCA) - Original Petition - New Cases Filed attached thereto. (Certified Mail Receipt and Green Card Attached)

/f"<;,/ 0 ., ~}~~,'.', ,Vf!~p , ~\~\

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29

CITATION- personal service- TRC 99 THE STATE OF TEXAS CAUSE NO. CV-14-41665

PENTEX FOUNDATION VS. § IN THE DISTRICT COURT KENNETH VERN GIBBS AND CANDACE GIBBS WALTON AND § 336th JUDiCIAL

I

DIS'fiUCT .. r~-~ ~·

HOWARD KIRK GIBBS (,.·-;...... .:.~ § FANNIN' COUNTY, DXAK ..

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: . (....;· ··: .---;

TO: Howard Kirk Gibbs :; :~ 4360 Western Center BLVD #205 h~ ·. ··-·,-. Ft Worth TX 76137, or wherever he/she may be found DEFENDANT- GREETING .".::.:) :.. ...: _J·::

~- ..

• ::--

NOTICE TO DEFENDANT: "You have been sued. You may employ an attorney. If you or yO~r attorney do not file a written answer with the clerk who issued this citation by 10:00 a.m. on the Monday next following the expiration of twenty (20) days after you were served this citation and petition, a default judgment may be taken against you." TRCP. 99

You are hereby commanded to appear by filing a written answer to the Plaintiff's Petition ~ Monday next after the expiration of 20 days after the date of service of this cita~ioi[ ~ Court of Fannin County, Texas, at the courthouse in said County in the City c 3 ., ~ Petition was filed in said court on the ; lsi day of April, 2014 in the above en ~ : ~ ::=!i~ The nature of Plaintiff's demand is fully shown by a true and correct copy of ,.. 0'i g.

accompanying this citation and made a part hereof. 2 CD

---n\51-~,- ~ I Issued and given under my hand and seal of sai;f'Col.!'n-at-B~~Fannin C § Attorney for Plaintiff or Plaintiff: ($~---·.,\ ~\ John Skotnik, 'l>l :-: t ,a;. t I : -1: · -·

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--,-,----.,-----,--- kn· :going instrument has been c: S terested in the outcome of th~u;l, uhu

- - - - - - - - - ' 20_ _ _ _ _ _ _ _ _ _ Notary Public 'E Of' DELIVERY DY M~- TRC 106 _ _ , 20J1_, at f:>J o'c)o~k ~.M .. !mailed to Howard Kirk Gibbs 4360 Western certified mail, with delivery restricted to addressee only, return receipt requested, a true copy of this ched thereto. (Certified ail Rec · and Green Card i\ttachcd)

30

• CITATION- personal service- TRC 99 .. , THE STATE OF TEXAS CAU~ 1\i!t CV:;:l4-416~5 PENTEX FOUNDATION VS. § INTHt~~C~CO~~ i ;:=:j:_,. ~~ :2,--':

KENNETH VERN GIBBS AND CANDACE GIBBS WALTON AND § 336th J:lJDI~N.- Dl~TIU(:f HOWARD KIRK GIBBS i::~ ~",c~ -:::.:: .::: ~

§ FANN~ c1j(fN~ TExAS TO: Kenneth Vern Gibbs 4212 Wheeler ST Ft Worth TX 76117, or wherever he/she may be found DEFENDANT- GREETING

NOTICE TO DEFENDANT: "You have been sued. You may employ an attorney. If you or your attorney do not file a written answer with the clerk who issued this citation by 10:00 a.m. on the Monday next following the expiration of twenty (20) days after you were served this citation and petition, a default judgment may be taken against you." TRCP. 99

You are hereby commanded to appear by filing a written answer to the Plaintiffs Petition at or before I 0:00 o'clock A.M. on the Monday next after the expiration of 20 days after the date of service of this citation, before the Honorable 3361h Judicial District Court of Fannin County, Texas, at the courthouse in said County in the City of Bonham, Fannin County, Texas. Said Plaintiff's Petition was filed in said court on the ; 1st day of April, 2014 in the above entitled cause.

The nature of Plaintiff's demand is fully shown by a true and correct copy of (OCA)- Original Petition -New Cases Filed accompanying this citation and made a part hereof~-T-·-· ,·;.~~~!.t: (l(i'•, l"ucd and g;vcn undc, my hand and seal,""~*~' Fann;n County, Texas th;s 3'd day of Apdl, 2014.

I ' \ ~

o{ \ \ Attorney for Plaintiff or Plaintitl: J o h n Skotm·k , Attorney at Law { 1• '""•

• .on\ \~-. -,"A~' _, ~"V'

,.~~/ •en:• :'ff:f: t_k Clerk of the Court:

Nancy Young, District Clerk ~E am Rayburn Drive, Suite 201 PO Box 727 '·.:~;·--------~\. / nCo y, Texas 7541K Bonham TX 75418 __ .... .,. __ . --

··• ••• .COU"''-_)· _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Deputy

U.S. Postal ServiceTM CERTIFIED MAILTM RECEIPT (Domestic Mail Only; No Insurance Coverage Provided)

_ _,20_ _ .

Fannin County, T,·xas b y - - - - - - - - - - - - - - - Sheriff/Deputy/Constable/Process Server

VERIFICATION

_ _ _ _ _ _ _ _ _ _ _,20_ _ _ _ _ _ _ _ _ _ _ Notary Public <:OF DELIVERY BY MAIL- 'rRC 106 ---:~L!-Jr=-~:::-::---::---:-:-:--::-' at jzolj_. s·J 0 "clock D.M., I mailed to Kenneth Vern Gibbs 4212 Wheeler ST Ft Worth TX 76117, Defendant by registered mail certified mail, with delivery restricted to addressee only, return rrceipt requested, a true copy of this citation with a C<>pv

o( ,,, (OCA) no:l7~~·;J~w?i''(~~ ~';;~T:M~I ·~cip< G'f· ~ """ -"·~~· s''"''

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Class/Service

I Class/Service:

Class of Mail Code/Description:

First·Cias.s Cet1ified Mail FC! First Class

I Service Performance Date:

Service Delivery Information Scheduied Delivery Date: Saturday, 04/05/2014 II Delivery Option Indicator: 1 • Normal Delivery Zone: 01

Ii PO Box:

Other Information

N

i Payment Type:

Payment Other Postage Payment Account Number: 000000000000 I Postage: $2.03

[_ _· ---··---------- _ - - - - - - - - - - - - - - - - - _______ ---------------~~-~~-!~-~;.~~;;.;_ _ _ _ _ ~f.~~tt~!~~-~-:_ ~!o~L- -------------------- ---------------------- ---------------------- ,-------·----------·---------------------------------------------------------------------------------··--·-----------·--···-------------------··-·- ·--·-······-·····----------------···----·-------------------------------------, l Extra Services 1§~~~::~:~:;:~~:~~~~~~!~~::::::::::::::::::::::::::::::::::::::::::-:::-:::~--------------------------- ·-------------------------------------------·-----------------···-·----·--------------------·---·--< jj Dflscription j ,;~nlt"HHrt. \~c.~~i!~~-~--~!~i~-:--~~---=--- . . ___ --r$3;3.;_~~-~-- : Return Receipt . $2.70 1:-.:-.-:.·."";:".":.·.·.::.·.·-·---·-----"-":.'-"·"·"-·-·-·..::.·:.-...........-.·-·.:-.•..-.":.·.·-·.-:.·.·.::.·.:-·---·-·.:.·.·.--·~----·-..-·. ·-"":...·.-------.·-·------.:...·.·..-.:.~--~..:.--.-:.::...·..·.·----·.

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33

I·- CITATION -personal service-TRC 99 V'~ THE STATE OF TEXAS CAUSE NO. CV-14-41665

PENTEX FOUNDATION VS. § IN THE DISTRICT COURT KENNETH VERN GIBBS AND CANDACE GIBBS WALTON AND § HOWARD KIRK GIBBS §

TO: Candace Gibbs Walton ,.......

..~,-.

I -·~ ;..:._ 500 Logan DR n--:2-· . <; . . . .

-~~-

Azle TX 76020, or wherever he/she may be found DEFENDANT - GREETING .. •,

NOTICE TO DEFENDANT: "You have been sued. You may employ an attorney. Ifyou oryou·r attorney do not file a written answer with the clerk who issued this citation by 10:00 a.m. on the Monday next following the expiration of twenty (20) days after you were served this citation and petition, a default judgment may be taken against you." TRCP. 99

You are hereby commanded to appear by filing a written answer to the Plaintiff's Petition at or before 10:00 o'clock A.M. on the Monday next after the expiration of 20 days after the date of service of this citation, before the Honorable 3361h Judicial District Court of Fannin County, Texas, at the courthouse in said County in the City of Bonham, Fannin County, Texas. Said Plaintiff's Petition was filed in said court on the ; 1st day of April, 2014 in the above entitled cause.

The nature of Plaintiff's demand is fully shown by a true and correct copy of (OCA)- Original Petition -New Cases Filed accompanying this citation and made a part hereof.

/~~g;~---

::,::::::o:i:~~:,::e:,:,.~:::,and 'cal of 'aid (;,~.~~ rrh~~~ Coanty, Tcxosc:::: :;l,::YC:::P'il, 21!14 I """

John Skotnik, :-·, t,...- II I t :I Nancy Young, District Clerk Attorney at Law •, ~\ /c, / 101 E. Sam Rayburn Drive, Suite 201 PO Box 727 \,?j,··... __.-~/ Bon annin County, Texas 75418 Bonham TX 75418 ',, ~o··------ '\~/ ···- UNT~ ,___ • ---------- Deputy

1. Article Addressed to: D. Is delivery address different from Item 1?

~C\.V\do.ee e\,bbS W\tDV\ If YES, enter delivery address below:

Certified Fee D Cl Return Receipt Fee c::J (Endorsement Required)

'SoD ~y) Dr·,ve 0 Restricted Delivery Fee f---:.=...:..:._:_-'{ (Endorsement Required) 1-----'...:...:..C:..:._--j Azk. T)( 1uozo c~,., 0 Return Receipt for MecQiel~ CIC.O.D.

2. Article Number (ftansfer from service label)

7013 2630 DODD 4812 7617 PS Fonn 3811, February 2004 Domestic Retum Receipt 102595-0Z·M·f540 I Dtf,·ve.~-e-J by Ceffl rht~-J t911 ~ ---'T-t-=-""=-==,-~,.,~---------~/Process Server ~/,/r¥ G_ /:S3!A.-5 '10 I~ 2b.3D Duo<.) 4-BI-2 (u 11

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777 MAif\ ST., Su:. 600 fOI<I \VOI<fll. 'ff..::t~S 76102 PIIOI\E: 817.504.0075 !<'AX: 800.437.790 I

clee((~christyleclaw.eom Clerk of the Court www. ctrristyleela w.com 101 E Sam Rayburn Drive, Suite 200 Bonham, TX 75418

Re: Cause No. CV-14-41665 Pentex Fotmdation vs. Kenneth Vern Gibbs, et al. Motion to Show Authority

To Whom It May Concern:

Enclosed is the Motion to Show Authority, Motion for Change of Venue, Original Answer, Affirmative Defenses, Original Counterclaim, and Rule 13 Motion for Sanctions of Kenneth Vern Gibbs and Candace Gibbs Walton, in Cause No. CV-14-41665.

Please file the original document with the Court, and return the tlle-marked copy to the firm in the enclosed self-addressed, stamped mailer.

If you have any questions, please contact our office. Thank you for your assistance with this matter.

Very truly yours, LAW OFFICES OF CHRISTY LEE, P.C.

Laura Hogins, Paralegal

Enclosure: Motion Copy ofMotion SASE

CAUSE No. CV-14-41665

PENTEX FOUNDATION )

)

PLAINTIFF, )

)

vs. )

)

KENNETH VERN GIBBS; AND ) CANDACE GIBBS WALTON; AND ) HOWARD KIRK GIBBS, )

)

DEFENDANTS. ) FANNIN COUNTY, TEXAS

MOTION TO SHOW AUmORITY, MOTION FOR CHANGE OF VENUE, ORIGINAL ANSWER, AFFIRMATIVE DEFENSES, ORIGINAL COUNTERCLAIM, AND RULE 13 MOTION FOR SANCTIONS OF KENNEm VERN GmBS AND CANDACE GIDBS WALTON

TO THE HONORABLE JUDGE OF THE COURT:

COME NOW, KENNETH GIBBS and CANDACE WALTON, Defendants, by and

through their Counsel of Record, Law Offices of Christy Lee, P.C., even though neither

received proper service, and file this Motion to Show Authority, Motion for Change of Venue,

Original Answer, Affirmative Defenses, Original Counterclaim, and Rule 13 Motion for

Sanctions, and respectfully show the Court, as follows:

I. PARTIES AND STATEMENT OF CAUSE

1. Plaintiff is Pentex Foundation ("Pentex"), reportedly a nonprofit private entity

formed and operated under the laws of the Republic ofPanama, Central America.

2. Defendants are Kenneth "Ken" Gibbs and Candace "Candy" Walton, who, along

with Defendant Howard Kirk Gibbs (''Howard"), are siblings, and Heirs to the Estate of Bert

MOTlON TO SHOW AUTHORITY, MOTION FOR CHANGE OF VENUE, ORIGINAL ANSWER, AFFIRMATIVE DEFENSES, ORIGINAL COUNTERCLAIM, AND RULE 13 MOTION FOR SANCTIONS OF KENNETH VERN GIBBS AND CANDACE GIBBS WALTON ~USE No. CV ~ 14-41665 -1-

Hughes Gibbs ("the Estate").

3. Pentex brought suit against Defendants concerning long-contested assets original

to the Estate.

4. The Estate is an open probate case in Statutory Probate Court No. 2, Tarrant

County, Texas, Cause No. 2005-0000126-2.

II. DEn:NDANTS' MOTION REQUESTING JoHN SKOTNIK TO SHOW AUTHORITY TO ACT

5. On April I, 2014, Pentex filed its Original Petition against Defendants.

6. Ken and Candy contend that the Original Petition is without authority.

7. Counsel of Record for Pentex is John Skotnik ("Skotnik"). This was the same

Skotnik who was Counsel of Record for Ken and Candy in Estate proceedings, Cause No. 02-

05-00184-CV, in the Second Court of Appeals, in Denton County, Texas. Skotnik's

participation as Counsel of Record for Pentex in this matter poses a conflict of interest and

constitutes a violation ofRule 1.06, Texas Rules of Professional Conduct.

8. Multiple times over the past several years, Ken and Candy requested evidence of

Pentex's existence and proof of Albert Barcroft's alleged authority to act on Pentex's behalf:

However, no such proof- no incorporation papers; no minutes of board meetings; no tax

records; in fact, no documentation whatsoever - has ever been produced to indicate that Pentex

exists or that Albert Barcroft has any authority to act on Pentex's behalf, let alone file a lawsuit.

9. Additionally, the Original Petition filed by Skotnik on behalf of Pentex

highlighted the Contract for Sale of Land ("CSL"). 1 The CSL was signed by Albert Barcroft

1 The full title of the CSL is Contract for Sale of Land, Mineral Rights and royaltie.~, and all other Assets or

MO'flON TO SHOW AUTHORITY, MOTION FOR CHANGE OF VENUE, ORIGINAL ANSWER, AFFIRMATIVE DEFENSES, ORIGINAL COUNTERCLAIM, AND RULE 13 MOTION FOR SANCTIONS OF KENNETH VERN GIBBS AND CANDACE GIBBS WALTON

3 ~USENO. CV-14-41665

37

and Defendants, and recorded in Denton County, Texas, on May 24, 2005. Pentex was not a

party to the CSL. Skotnik cannot sue, on Pentex's behalf, regarding a contract to which Pentex

is not a party.

10. Under Rule 12 of the Texas Rules of Civil Procedures, Ken and Candy request

that notice of their Motion to Show Authority be served on all parties to this case and on their

Attorneys of Record, and that the Court set a hearing for this Motion for at least ten (1 0) days

after notice requiring Skotnik to show authority for the Original Petition.

11. Ken and Candy further request that, upon the conclusion of such hearing, the

Court enter an Order finding that Skotnik is without authority in this matter, and striking the

Original Petition filed by Skotnik.

Ill. MOTION TO CHANGE VENUE

12. Citing§ 15.05 of Texas Civil Practice and Remedies Code, Pentex misinformed

the Court as to appropriate venue for this Cause. (Since§ 15.05 does not exist, it is assumed that

Pentex intended to cite§ 15.005.) All Defendants reside in Tarrant County, Texas. Therefore,

Venue is proper in Tarrant County, Texas. Ken and Candy request that the Court transfer this

case to Tarrant County, under the authority of Texas Civil Practice and Remedies Code §

15.002(a)(2).

13. 1be transfer to Tarrant County will not cause a hardship or an injustice for any

other party, per Texas Civil Practice and Remedies Code§ 15.002(b)(3), as Pentex is reportedly

a foreign entity, and its Attorney of Record, John Skotnik, practices in Tarrant County and in

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

MOTION TO SHOW AUTHORITY, MOTION FOR CHANGE OF VENUE, ORIGINAL ANSWER, AFFIRMATIVE DEFENSES, ORIGINAL COUNTERCLAIM, AND RULE 13 MOTION FOR SANCTIONS OF KENNETH VERN GIBBS AND CANDACE GIBBS WALTON CAUSE NO. CV-14-41665

38

fact recently filed his own lawsuit against the Estate, concerning distribution of Estate Assets, in

Statutory Probate Court No.2, in Tarrant County.

14. John Skotnik, Attorney for Pentex, is a Fannin County municipal court judge. In

addition, John Skotnik drafted the CSL document in dispute, and neither Ken nor Candy had

legal representation when signing the document. The Court should transfer this ca<;e to Tarrant

County because the prejudice in this county is so great that Ken and Candy cannot obtain a fair

and impartial trial. Texas Rules of Civil Procedure 257(a); see Dorchester Gas Producing Co. v.

Harlow Corp. 743 S.W.2d 243, 253 & n. 6 (Tex. App. -Amarillo, 1987, no writ). A trial in

Fannin County will deprive Ken and Candy of their due process rights to a fair trial under both

United States Constitution Amendment 14 and Texas Constitution Article 1, Section 19.

15. Furthermore, Pentex's arguments reference only the distributions of Estate assets

as addressed in the Family Settlement Agreement ("the FSA"), dated October 5, 2008, and

executed in Tarrant County, Texas. The Estate is currently administered in Tarrant County,

Texas. Therefore, on April 18, 2014, Ken and Candy filed Motion to Transfer this Cause of

Action to Statutory Probate Court Pursuant to Section 34.001 of the Texas Estate Code, in

Cause No. 2005-0000126-2, in Tarrant County, Texas. See Exhibit A.

IV. DEFENDANTS' ORIGINAL ANSWER

A. General Denial

16. Ken and Candy deny each and every allegation of wrongdoing of Pentex's

Original Petition, and demand strict proof of each allegation, as required by the Texas Rules of

Civil Procedure.

MOTION TO SHOW AUTHORITY, MOTION FOR CHANGE OF VENUE, ORIGINAL ANSWER, AFHRMATTVE DEFENSES, ORIGINAL COUNTERCLAIM, AND RULE 13 MOTION FOR SANCTIONS OF KENNETH VERN GIBBS AND CANDACE GIBBS WALTON CAUSE No. CV-14-41665

39

B. Affirmative Defenses

17. Pentex based its complaint against Ken and Candy on the CSL, to which Pentex

is not a party. Pentex therefore has no standing with regard to the CSL.

18. The matter of the contested distributions formed the basis for the FSA, to which

Pentex was not a party, and therefore Pentex has no standing with regard to the FSA.

19. When Pentex transferred all its reported interest in GWB Friends and Family

Trust ( 11 GWB Trust''), it transferred it to OBU Friends and Associates Trust (11 GBU Trust"), and

no longer has any interest in the alleged Estate assets, and therefore Pentex has no standing to

seek relief against Ken and Candy.

20. Despite the reliance on the CSL and FSA in the Original Petition, Pentex's

arguments of wrongdoing by Defendants specifically concerned distributions of Estate assets,

which only the Estate had authority to distribute. Therefore, the Estate, not Ken and Candy,

would be appropriately named Defendant in the Cause. See Original Petition, page 5, No. 27.

The case should have been file against the Estate in Tarrant County, Texas.

V. DEFENDANTS' COUNTERCLAIM

21. Based upon the facts, a case and controversy exists that warrants declaratory

relief for Ken and Candy. Ken and Candy raise the following issues and facts as a counterclaim

against Pentex. See Plaintiffs Original Petition to Remove Trustee, Appoint Successor Trustee,

Compel Trust Accounting, Preserve Assets, Compel Conversion of Assets, and Terminate

Trust, attached as Exhibit B. Exhibit B should be incorporated in its entirety.

22. Fraud. Pentex's wrongful taking of assets in GWB Trust, of which Ken and

Candy hold a combined interest of more than 50%, constituted fraud, as that term is legally

MOTION TO SHOW AUTHORITY, MOTION FOR CHANGE OF VENUE, 0RIUINAL ANSWER, AFFIRMA'ITVE DEFENSES, ORIGINAL COUNTERCLAIM, AND RULE 13 MOTION FOR SANCTIONS OF KENNETH VERN GIBBS AND CANDACE GIBBS WALTON CAUSE NO. CV-14-41665

40

defmed, leading to conspiracy with Howard Kirk Gibbs and to the substantial loss of GWB

Trust assets. By practicing law without a license, Albert Barcroft, a.k.a. Pentex, exerted undue

influence over the Trusteeship of GWB Trust, to the extent that assets were illegally transferred,

posing financial harm to Ken and Candy. Also, on August 20, 2013, the Internal Revenue

Service filed a federal tax lien for $26,664.23 against Pentex. In order to avoid paying federal

taxes, Pentex created a new trust, GBU Trust, and transferred all the ill-gotten GWB Trust oil

and gas mineral rights into GBU Trust.

23. Theft and Unjust Enrichment. Pentex's actions resulted in the loss of

significant GWB Trust assets and constituted a violation of the Theft Liability Act, in violation

of Texas Penal Code Chapter 31.03, including theft by deception, deprivation, and

appropriation.

24. Embezzlement. Albert Barcroft, a.k.a. Pentex, ao; Advisor to the GWB Trust

Trustee, committed acts, legally defined as embezzlement, in violation of Texas Penal Code

31.03. The act of embezzlement deprived GWB Trust of its lawfully owned assets.

VI. MoTION FOR SANCTIONS

The Original Petition seeking relief was signed in violation of Rule 13, as a reasonable

inquiry by John Skotnik and his client would have shown that the allegations are false,

frivolous, and meant solely for the purpose of harassment. Even a cursory review of the CSL,

FSA, and recent ill-gotten transfers of GWB Trust assets would have revealed that the

allegations are without any factual basis. Therefore, the court should award Sanctions available

under Rule 215-2(b).

MOTION TO SHOW AUTHORITY, MOTION FOR CHANGE OF VENUE, ORIGINAL ANSWER, AFFIRMATIVE DEFENSES, ORIGINAL COUNTERCLAIM, AND RULE 13 MOTION FOR SANCTIONS OF KENNETH VERN GIBDS AND CANDACE GIBBS WALTON CAUSE NO. CV -14-41665

41

VII. PRAYER FOR RELIEF

Based on the foregoing, Ken and Candy pray that this Court:

(1) Transfer the case to the appropriate court, Statutory Probate Court No. 2, in Tarrant County;

(2) Dismiss Pentex's complaint in its entirety with prejudice, as Skotnik has no authority to act, and Pentex lacks standing with regards to CSL and FSA; or, in the alterative, find Pentex committed fraud, theft and unjust enrichment, and embezzlement;

(3) A ward Ken and Candy costs and attorney fees;

(4) Require Pentex and/or Albert Barcroft to account for, and to return, all proceeds received from GWB Trust or GBU Trust since November 28, 2013, in order to facilitate equitable distribution of income and expense from GWB Trust;

(5) Enter all other Orders and further relief, legal and equitable, that the Court deems appropriate in this matter, including appropriate sanctions for the violation of Rule 13; and

(6) For such further and additional relief as justice may require.

Respectfully submitted, LAW OFFICES OF CHRISTY LEE, P.C.

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

ATTORNEY FOR KENNETH GIBBS AND CANDACE WALTON

MOTION TO SHOW AUTHORITY, MOTION FOR CHANGE OF VENUE, ORIGINAL ANSWER, AFFIRMATIVE DEI'ENSES, ORIGINAL COUNTERCLAIM, AND RULE 13 MOTION FOR SANCTIONS OF KENNETH VERN GIBBS AND CANDACE GlBBS WALTON CAUSE NO. CV-14-41665

42

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing document was delivered,

1

pursuant to Texas Rules of Civil Procedure, to the following parties on this 24 h day of April, 2014:

Pentex Foundation Via mail and email c/o John Skotnik, Attorney ofRecord P.O. Box 727 Bonham, TX 75418

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

/l /

(I/:'~ Christy L. Lee

MOTION TO SHOW AUTHORITY, MOTION FOR CHANGE OF VENUE, ORIGINAL ANSWER, AFFIRMATIVE DEFENSES, ORIGINAL COUNTERCLAIM, Ai'lD RULE 13 MOTION FOR SANCTIONS OF KENNETH VERN GII3BS AND CANDACE GIBBS WALTON CAUSE NO. CV -14-41665

CANDACE WALTON, AND ) IN THE PROBATE COURT KENNETH GIBBS, )

)

PLAINTIFFS, )

)

vs. )

)

BEVERLY MILLER, INDIVIDUALLY AND AS ) No.2 TRUSTEE OF GWB fA MIL YAND FRIENDS TRUST;) ALBERT BARCROFT, INDIVlDLIALLY AND AS ) LEOAL REPRBSENTATIVE OF PENTEX ROYALTY ) TRUST AND PENTEX fOUNDATION; ) DANNY UNGER, AS TRUSTEE OF ) GBU FRIENDS AND ASSOCIATES TRUST; AND ) HOWARD KIRK GIBBS, )

)

DEFENDANTS. ) TARRANTCOUNTY, TEXAS

MOTION TO TRANSFER CAUSE OF ACTION TO STATVTORY PROBATE COURT .PU.RSUANT TO SECTION 34.001 OF THE TEXAS ESTATE CODE

TO THE HONORABLE JUDGE OF THE COURT:

NOW COME, CANDACE WALTON AND KENNETH GIBBS, MOVANTS. and file

this Motion to Transfer Cause of Action to Statutory Probate Court~ pursuant to Section 34,001

of the Texas Estate Code, and would respe.ctfuUy show the Court~ as follows:

I. Movants are Plaintiff.'i in tbis proceeding, and are the Heirs to the Estate of Bert

Hughes O.ibbs ("the Estate," Cause No. 2005~0000126~2, in this Probate Court). Movant

Kenneth Gibbs is the lndependent Executor of the Estate. Thus, Movants are persons interested

to this Cause and the Estate within the meaning of Sections 22.018.1 and 34.001 of the Texas

Estate Code.

2. This ancillary Cause involves strongly contested assets original to the Estate (''the

Estate Assets"). MOTION TO TRANSPER CAUSE OP ACTION TO STATUTORY PROMTE COURT PURSUANT tO SECTION.34,00 l OF THE TflMS EsTATHCOUE CAUSE No. 2005-0000 126-2-P -1-

43 Exhibit A, Page 1 of 4

J. On April 1, 2014, Pcntex Foundation filed suit against Movants and Howard Kirk

Gibbs, in the 336lh Judicia] District Court of Fannin County, Texas. Cause No. CV~14-1665.

Pentex Foundation v.t /(etmeth Vern Gibbs and Candace Gibbs Walton and Ho·ward Kirk Gibbs

(''Pentex vs. Gibbs"). According to Pentex, Defendants were unjustly depriving Pentex of its

rightful riches, aU of which were described as having poured directly from the <:ushy coffers of

the Estate.

4. The attorney of. record for Pentex is John Skotnik.

5. The following week, on April 10, 2014, that same John Skotnik filed in this

Probate Court ''Movant's Reply to Executor's Pleading Entitled 'Independent Execmor~s

Response to Objections to Section 149A Accounting' & Application to Remove Executor" ("the

Reply"). Mr. Skotnik filed the Reply as Movant/Applicant, pro se. Mr. Skotnik's Reply

strenut)Usly objected to the Estate's Accounting and strenuously petitioned the Cowt to remove

the Independent Executor, all while simultaneously "'applauding'; Howard Kirk Gibbs for

Howard Kirk Gibbs' similarly worded pr,o se filing in the Estate matter. 1 The reason? In the end,

it nll came down to Estate Assets - what they were. where they were, who should have them, and

why they had not already been sold in order to provide the Estate cash flow.

6. In the Reply~ Mr. Skotnik questioned Movants' respective percentages of Estate

interest in relationship to demands made of the Estate by Pentex. 2 The Reply's referer1ce to the

Estate Assets clarified that. at the time he filed Pentex's Original Petition in Fannin County

District Comt, Mr. Skotnik was fully aware that Pentex vs. Gibbs should have rightfully been

1 As counsel of record, Mr. Skotnik named Howar-d Kirk Gibbs as Dutendant in the Pentex suit file<! in Fannin County District Court 2 Seeissue 11, pages I I- 12, of the Reply.

MOTION TO 'l'RANSFER CAUSE OF ACTION TO STATUTORY nw PROBATE COUR'f'JW~SUAN1' T(> Sl!Crt(lN 34.00 I tW Tf:Xf\S EST ATE CODE CAlfSENO. 2005..0000!26~2-D -2-

44 Exhibit A, Page 2 of 4 filed as an ancillary proceeding to the Estate in this Court, as the Cause was directly related to

Estate Assets. Pentex's tiling in Fannin County District Court points to a distinct disregard for

efficiency and economy concerning related matters before this Court.

7. Pursuant to Section 34.00 I of the Texas Estate Code, Movnnts request that this

Court transfer to itself Cause No. CV-14-41665, pending in the 336th Judicial District Court of

Fannin County, Texas.

8. Once the case has been transferred to this Court, Movants request that it be

docketed as an adversary proceeding as part of the ancillary Probate action now pending.

WHEREFORE. PREMISES CONSfDERED, Movants pray that this Court grant this

Motion and for such other and fltrther relief to which Movanrs may be entitled.

Respectfully submitted, LAW OFFlCES OF CHRISTY LEE. P.C.

Christy L. Lee Texas State Bar No. 24052302 711 Main Street, Ste. 600 Fort Worth, Texas 76102 (817) 504~6075 (800) 437-7901 -Fax clee(t-~chdsLyleelaw.com

ATTORNEY FOR MOV ANTS

MOTION TO TRANSFER CAUSE OF ACTION 1'0 STATUTORY PROBATE COURT Pl.JRSOAN'rl'O SECfiON 34.001 Of< TilE TEX1\S ESTi\TF CODE CAUSE No. 2Q05-0000 126~2-D -3-

45 Exhibit A, Page 3 of

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing document was delivered, pursuant to Texas Rules of Civil Procedure, to the following parties on this 18111 day of April, 2014:

Pentex Foundation Via facsimile and email c/o John Skotnik, Attorney of Record P.O. Box 727 Bonham, TX 75418

Howard Kirk Gibbs Via mail and cmai1 9929 Crawford Fann Drive Fort Worth, TX 76244

Christy: L. Lee

MOTION TO TRANSFER CAUSE OF ACTION TO STA'IlftOR\' PROBATE COURT PURSUANT 1'0 SECTION 34,001 OJ' THE: TEX/\S ESTATE CODE CAUSE No. 2005~0000 l26-2·D -4~

46 Exhibit A, Page 4 of 4

CAUSE No. 2005-0000126-2-D

CANDACE WALTON, AND ) IN THE PROBATE COURT KENNETH GIBBS, )

)

PLAINTIFFS, )

)

vs. )

)

BEVERLY MILLER, INDIVIDUALLY AND AS ) TRUSTEE OF GWB FAMILY AND FRIENDS TRUST;) ALBERT BARCROFT, INDIVIDUALLY AND AS ) No.2 LEGAL REPRESENTATIVE OF PENTEX ROYALTY ) TRUST AND PENTEX FOUNDATION; ) DANNY UNGER, AS TRUSTEE OF ) GBU FRIENDS AND ASSOCIATES TRUST; AND ) HOWARD KIRK GIBBS, )

)

DEFENDANTS. ) TARRANT COUNTY, TEXAS

PLAINTIFFS' ORIGINAL PETITION TO REMOVE TRUSTEE, APPOINT SUCCESSOR TRUSTEE, COMPEL TRUST ACCOUNTING, PRESERVE ASSETS, COMPEL CONVERSION OF ASSETS, ANDTERNUNATETRUST

TO THE HONORABLE JUDGE OF THE COURT:

COME NOW, CANDACE WALTON and KENNETH GIBBS, Plaintiffs in the above-

styled and numbered cause, complaining of Defendants BEVERLY MILLER, individually, and

as Trustee of GWB FAMILY AND FRIENDS TRUST ("GWB Trust"); ALBERT BARCROFT,

Legal Representative of Pentex Royalty Trust and Pentex Foundation (collectively, "Pentex");

DANNY UNGER, as Trustee and Beneficiary of GBU Friends and Associates Trust ("GBU

Trust"); and HOWARD KIRK GIBBS, Beneficiary of GWB Trust and GBU Trust; and petition

the Court to remove Beverly Miller as Trustee ofGWB Trust, and to appoint a successor trustee;

to compel a trust accounting of both GWB Trust and GBU Trust; to preserve trust assets and to

PLA!NTfFFS' ORIGINAL PETITION TO REMOVE TRUSTEE, APPOINT SUCCESSOR TRUSTEE, COMPEL TRUST ACCOUNTING, PRESERVE ASSETS, COMPEL CONVERSION OF ASSETS, AND TERMINATE TRUST -1-

47 Exhibit B, Page 1 of 33 order conversion of trust assets; and to terminate the GWB Trust and distribute assets per each

Beneficiary's interest. Plaintiffs would show the Court the following:

I.

LEVEL OF DISCOVERY

1. Discovery in this case is intended to be conducted under Level 2 of Rule 190 of

the Texas Rules of Civil Procedure.

II.

PARTIES

2. CANDACE WALTON is a Beneficiary of the GWB Trust and is a resident of

Tarrant County, Texas.

3. KENNETH GIBBS is a Beneficiary of the GWB Trust and is a resident of

Tarrant County, Texas.

4. BEVERLY MILLER is Trustee of the GWB FAMILY AND FRIENDS

TRUST and is a resident of Fannin County, Texas. Beverly Miller may be served with process

at:

6483 West Highway 56 Savoy, Texas 75479

5. DANNY UNGER is Trustee and Beneficiary of the GBU TRUST FRIENDS

AND ASSOCIATES TRUST, which is a trust sited in Anderson County, Texas, and may be

served with process at:

410 Anderson County Road 154 Palestine, Texas 75801

PLAINTIFFS' ORIGINAL PETITION TO REMOVE TRUSTEE, APPOINT SUCCESSOR TRUSTEE, COMPEL TRUST ACCOUNTING, PRESERVE ASSETS, COMPEL CONVERSION OF ASSETS, AND TERMINATE TRUST -2-

48 Exhibit B, Page 2 of 33

6. ALBERT BARCROFT is the Legal Representative of Pentex Royalty Trust and

Pentex FowlCiation, and a Beneficiary of GBU Trust. Albert Barcroft may be served with

process at:

410 Anderson County Road 154 Palestine, Texas 75801

7. HOWARD KIRK GIBBS is a Beneficiary of GWB Trust and GBU Trust.

Howard Kirk Gibbs may be served with process at:

9929 Crawford Fann Drive Fort Worth, Texas 76244

III.

JURISDICTION AND VENUE

8. This Court has jurisdiction under Texas Estate Code § 32.007, as statutory probate

court has concurrent jurisdiction with the district court in an action against a trustee, and this

matter involves proceeds from the Estate of Bert Hughes Gibbs, Deceased, over which this court

presides. Pursuant to Texas Civil Practice & Remedies Code 15.002 (a)(2), venue in Tarrant

County, Texas, is appropriate, as Defendant Howard Kirk Gibbs resides in Tarrant County.

IV.

FACTS

9. The Plaintiffs and Howard Kirk Gibbs are the natural children of Bert Hughes

Gibbs. 1

1 Kip Gibbs is also a natural child of Bert Hughes Gibbs, but he is not party to this lawsuit.

PLAINTIFFS' ORIGINAL PETITION TO REMOVE TRUSTEE, APPOINT SUCCESSOR TRUSTBE, COMPEL TRUST ACCOUNTING, PRESERVE ASSETS, COMPEL CONVERSION OF ASSETS, AND TERMINATE TRUST -3-

49 Exhibit B, Page 3 of 33

10. Bert Hughes Gibbs passed away, and Letters Testamentary were issued by

Probate Court No.2 in Tarrant County, Case No. 2005-0000126-2, on or about September 26,

2005.

11. After years of litigation~ a Family Settlement Agreement ("FSA") was signed on

September 5, 2008, by all parties, including Plaintiffs, and Defendants Howard Kirk Gibbs~ and

Albert Barcroft.2 On May 10, 2005, in a Contract for Sale of Land (''the CSL"),3 these same

parties had agreed to create an entity to hold the Plaintiffs' and Howard Kirk Gibbs's interest in

the Estate.

12. On November 8, 2008, GWB Trust document was drafted by Albert Barcroft,

who would prove to be a major player in the blood sport into which GWB Trust devolved. See

Exhibit A. Albert Barcroft informed Plaintiffs that he was legally able to draft trust documents,

as he had graduated from law school. Possessing no formal training in the law, and facing

complicated Estate settlement issues, Plaintiffs trusted Albert Barcroft and believed him to be

knowledgeable and legally empowered to draft legal documents. Albert Barcroft confided in

Plaintiffs that he elected not to become a full-fledged attorney on principle: he felt that signing

the attorney's oath for qualification would be immoral, as it went against his code of ethics. To

date, there is no proof that Albert Barcroft actually attended or graduated from any law school.

13. Albert Barcroft himself drafted the original GWB Trust agreement without legal

assistance. After the agreement was signed by the Settlors,4 on multiple occasions Albert

2 Albert Barcroft was enlisted to assist Plaintiffs and Howard Kirk Gibbs in exchange for a percentage of their interest of the inheritance. 3 The full title of the Contract was as follows: Contract for Sale of Land, Mineral Rights and Royalties, and all other Assets or Monies Received.from the Estate of Bert Hughes Gibbs, Kathryn G. Gibbs, and/or the Mary L. Houseworth Trust(s) or "The Kathryn Houseworth Gibbs Irrevocable Trust." 4 Plaintiffs and Howard Kirk Gibbs signed as Settlors.

PLAINTIFFS' ORIGINAL PETITION TO REMOVE TRUSTEE, APPOINT SUCCESSOR TRUSTEE, COMPEL TRUST ACCOUNTING, PRESERVE ASSETS, COMPEL CONVERSION OF ASSETS, AND TERMINATE TRUST

50 Exhibit B, Page 4 of 33

Barcroft requested that the Settlors add or remove certain provisions, although the edits he suggested were not presented as amendments, per se. On at least two (2} separate occasions,

Albert Barcroft also produced and asked Beneficiaries of GWB Trust to sign entirely new

documents for the already-existing trust; the Beneficiaries of GWB Trust did not do so. Despite

openly continuing to engage in such legal practice, and despite openly claiming himself to be a

"legal representative," Albert Barcroft is not licensed to practice law.

14. Immediately upon drafting the GWB Trust, Albert Barcroft created Pentex

Foundation and Peutex Royalty Trust. s Albert Barcroft self-identifies as the Legal Representative

of Pentex.6 Even though requested, Albert Barcroft refuses to show any proof that these entities

actually exist. Beverly Miller has no copies of documentation attesting to the existence of either

one. Albert Barcroft managed Pentex in and from Panama because he feared the Internal

Revenue Service ("I.R.S.j would seize assets as a result of successful litigation against him

years ago. This instinct for self-preservation is not unknown to Albert Barcroft, who, in order to

avoid further adverse and punitive action by the I.R.S., also transferred real property in Texas to

Renhaw, Inc. ("Renhaw"), an entity owned by a close friend. (The strategy ultimately proved

fruitless, as the courts deemed the transfer to be fraudulent and therefore allowed the I.R.S. to

seize the property.)

15. Over the years, Albert Barcroft developed quite the appetite for transfers of the

unsavory sort. Although he seemed blissfully unaware of it at the time, sating that appetite was a

risky practice. Way back on June 5, 2008, months before the creation of GWB Trust, and even 5 Albert Barcroft intended for Pentex Royalty Trust, rather than Pentex Foundation, to be Beneficiary of GWB Trust. a fact he demonstrated in February 2011 via a request to BenefiCiaries to exchange an entire page of the trust agreement for another page which reflected a change to Pentex Royalty Trust as Beneficiary. 6 In 2011, Pentex Foundation reportedly assigned its interest in GWB Tnist to Pentex Royalty Trust, of which Albert Barcroft is the sole Beneficiary.

PLAINTIFFS' ORIGINAL PETITION TO REMOVE TRUSTEE. APPOINT SUCCESSOR TRUSTEE, COMPEL TRUST ACCOUNTING, PRESERVE ASsETS, COMPEL CONVERSION OF AsSETS, AND TERMINATE TRUST

51 Exhibit B, Page 5 of 33 before the signing of the FSA, Albert Barcroft had transferred all his interest in the Estate to

Renhaw. The Transfer was recorded the following day in Denton County, Texas. So on

November 8, 2008, when Albert Barcroft established GWB Trust to receive Estate distributions,

Albert Barcroft actually held no interest whatsoever to assign to GWB Trust via Pentex. 7

16. The purpose of GWB Trust was to receive Plaintiffs' and Howard Kirk Gibb's

inheritance, including royalties from assigned mineral and oil rights, from the Estate. The

Beneficiaries of GWB Trust were named as follows:

Howard Kirk Gibbs 25.011613% interest Candace Walton 25.011613% interest Kenneth Walton 25.011613% interest Pentex Foundation 24.96516% interest

Waymond Walton, husband of Plaintiff Candace Walton. was named Independent Trustee. Due

to personal reasons, Waymond Walton resigned his appointment and was succeeded by Beverly

Miller as Trustee on March 7, 2011.

17. In light of Albert Barcroft's assignment of interest in the Estate to Renhaw, the

inclusion of Pentex as a Beneficiary was a devious move, especially since Albert Barcroft failed

to disclose to Plaintiffs the transfer. Beverly Miller's succession as Trustee occurred within mere

weeks of stil1 another curious transaction: a Release of Rights under Contract, in which Renhaw

transferred its interest in the Estate directly to GWB Trust. The Release was recorded February

18, 2011.

18. Whether Albert Barcroft realized it at the time or not, the Release effectively

removed him from the picture as Beneficiary, both individually and in the much vaunted position

7 It would be reasonable to surmise that Renhaw could have held the interest. But Renhaw was not mentioned in GWB Trust agreement, not as a Settlor, not as a Beneficiary.

PLAINTiFFS' ORIGINAL PETITION TO REMOVE TRUSTEE, APPOINT SUCCESSOR 'PtUSTEE, COMPEL TRUST ACCOUNTING, PRESERVE ASSIITS, COMPEL CONVERSION OF AsSETS, AND TERMINATE TRUST

52 Exhibit B, Page 6 of 33 of "Legal Representative" for Pentex, and rendered him a nonentity with regard to GWB Trust.

At the time GWB Trust was created, Albert Barcroft was not legally entitled to funds from the

Estate and therefore should never have named Pentex as Beneficiary to receive funds on his

behalf. Renhaw's Release meant that the flow of ownership of interest in the Estate rightfully

went as follows:

Albert Barcroft> Renhaw > OWB Trust

Since GWB Trust never assigned back to Albert Barcroft or to Pentex any interest from the

Estate, Albert Barcroft currently holds no legal interest in GWB Trust.

19. The Release meant that the three (3) remaining Beneficiaries each held one-third

(1/3) interest in GWB Trust. Sadly, since Albert Barcroft failed to inform Plaintiffs of his

transfers, Plaintiffs had no way of detennining the complete absence of interest he held in GWB

Trust. Thus, from its inception, GWB Trust operated as if Pentex were a legitimate Beneficiary,

with Pentex receiving regular distributions from the oil and gas royalties.

20. On or about the same day Renhaw recorded the Release, and very close to the

date that Beverly Miller assumed Trusteeship, Albert Barcroft approached interested parties with

the request that an entire page of the original OWB Trust agreement be swapped out with a page

containing revisions that Albert Barcroft himself made. The revision in question? A change of

Beneficiary from Pentex Foundation to Pentex Royalty Trust. Without concerning herself with

the provisions that she would later claim prevented her from producing certain records, and

without consulting the Beneficiaries of GWB Trust, Beverly Miller switched the pages, and in

the process violated the intent of OWB Trust as well as her ethical duty as Trustee.

PLAINTIFFS' ORIGINAL PETITION TO REMoVE TRUSTEE, APPoiNT SUCCESSOR TRUSTEE. COMPEL TRUST ACCOUNTING, PRESERVE AssETS, COMPEL CONVERSION OF AsSETS, AND TERMINATE TRUST -7-

53 Exhibit B, Page 7 of 33

21. Beverly Miller was initially lauded as a possible replacement for Waymond

Walton by Albert Barcroft. Albert Barcroft's close relationship with Beverly Miller spans more

than three (3) decades. By her own admission, from the inception of her administration to the

present, Beverly Miller has relied solely on the advice offered to her by Albert Barcroft, even

though she has been repeatedly told by Plaintiffs to seek legal advice. In Beverly Miller's defense

for listening to a person practicing law without a license, Beverly Miller claims that she is

unlearned in financial law.8 In turn, Albert Barcroft steadfastly continues to defend Beverly

Miller's administration of GWB Trust as being conducted with the utmost diligence and with the

very best of intent.

22. Albert Barcroft also is close to Danny Unger, who assisted Beverly Miller with

GWB Trust accounting tasks, and with Howard Kirk Gibbs, who at one time was linked to

shrinking the Estate of Bert Hughes Gibbs by almost $1 million, with no explanation as to where

the funds went off to reside.9

23. In early 2013, upon Plaintiffs' realization that the GWB Trust agreement

contained provisions not conducive to its original intent - provisions that in fact could undennine

the entire entity - relationships among the interested parties in GWB Trust began to deteriorate

rapidly. After consulting with a true attorney, one actually licensed to practice law, Plaintiffs

repeatedly advised Beverly Miller that GWB Trust was at risk and that steps should be taken to

ensure its longevity. Plaintiffs also made it plain to Beverly Miller that Plaintiffs wanted GWB

Trust terminated, with the assets split pro rata. By way of reply, Beverly Miller quoted Albert 8 Beverly Miller's attempts at downplaying her business and legal acumen are self-serving. Beverly Miller's employment histmy includes the title of "Executive Administrative Assistant to Chairman of the Board and President at Dai-Tile Corporation." 9 Howard Kirk Gibbs is also unable to act as Executor of the Estate of Bert Hughes Gibbs, as Howard Kirk Gibbs refused to provide his social security number.

PLAINTIFFS' ORIGINAL PETITION TO REMOVE TRUSTEE, APPOINT SUCCESSOR TRUSTEE, COMPEL TRUST ACCOUNTING, PRESERVE AsSETS, COMPEL CONVERSION OF ASSETS, AND TERMINATE TRUST ·8-

54 Exhibit B, Page 8 of 33

Barcroft: GWB T:ust provisions prohibited tennination of GWB Trust. Beverly Miller stated

that all GWB Trust actions - everything, in fact, related to GWB Trust - had to be agreed to by

all parties. And Beverly Miller referred all Plaintiffs' other questions concerning GWB Trust to

Albert Barcroft and Danny Unger.

24. Plaintiffs therefore questioned Albert Barcroft about the conflicting trust

provisions and offered to obtain legal counsel to amend or to restate the agreement as necessary.

Albert Barcroft replied in writing that GWB Trust could not be broken. And unfortunately,

Albert Barcroft quickly grew openly resentful and hostile to Plaintiffs' inquiries and ultimately

refused valuable communications to enable speedy resolution of the issues at hand. In effect,

Albert Barcroft's take on the entire situation was that there was a grasping, greedy attorney

(among other more choice, but less appropriate tenninology) on the stage playing Puppet Master

to the Plaintiffs' Pinocchio.

25. Likewise, Danny Unger's involvement with GWB Trust eventually proved highly

suspicious to Plaintiffs. Danny Unger had assisted Albert Barcroft with settlement of some of

the issues involved in the Estate, and to Plaintiffs. Albert Barcroft trumpeted Danny Unger as a

responsible, trustworthy recordkeeper- this, in spite of the fact that, although Danny Unger once

held the title of Certified Public Accountant, in order to avoid providing his social security

number, Danny Unger allowed his credentials to lapse. Among other tasks, Danny Unger was

charged with the responsibility for preparing IRS Form 1041 for GWB Trust. And while GWB

Trust paid fees for Danny Unger's services, Albert Barcroft also personally paid Danny Unger

for conducting research and general accounting issues concerning GWB Trust.

Pl.AJNTIFFS' ORIGINAL PETITION TO REMOVE TRUSTEE, APPoiNT SUCCESSOR TRUSTEE, COMPEL TRUST ACCOUNTING, PREsERVE ASSETS, COMPEL CONVERSION OF AsSETS, AND TERMINATE TRUST -9-

55 Exhibit B, Page 9 of 33 26. Unfortunately for Plaintiffs, Danny Unger tended to follow Albert Barcroft's lead.

When it carne time to make available GWB Trust accounting records to aU Beneficiaries, Danny

Unger was not so helpful. Like Albert Barcroft, Danny Unger failed to see the need for full

fmancial disclosure and refused to cooperate with Plaintiffs by producing OWB Trust account

infonnation. Instead, he eventually simply refused to communicate with Plaintiffs, except

through their counsel.

27. Bev~rly Miller conspired with Howard Kirk Gibbs, Albert Barcroft, and Danny

Unger in order to obtain assets unlawfully from GWB Trust. In order to execute illegal transfers

from GWB Trust, Howard Kirk Gibbs, Albert l!arcroft, and Danny fl.nger turned to !i!lJl. Trust,

of which they are beneficiaries. In concerted efforts with Beverly Miller, the three {3) gentlemen

effected transfers of mineml rights from GWB Trust to GBU Trust, thereby gaining access to

significant assets to which they were not entitled.

28. On November 26, 2013, Beverly Miller noticed Plaintiffs that Albert Barcroft

demanded a split of OWB Trust assets. Erroneously citing the CSL, Albert Barcroft convinced

Beverly Miller that she must effect the split he demanded and that she would be personally held

liable for any losses in the event of an inaccurate split - all these demands, from a man who

willingly transferred away his interest as far back as 2008 and never regained that interest.

29. Albert Barcroft's demand was both peculiar and in violation not only of GWB

Trust Provision 7.2, but also of Provision 3.3, which required:

Percentages of beneficial interest, or tbe method in which distribution are fsic.J are made, in the trust or its proceeds shall require a unanimous vote with all parties voting (30 votes).

PLAINTIFFS' ORIGINAL PETITION TO REMOVE TRUSTEE, APPoiNT SUCCESSOR TRUSTEE, COMPEL TRUST ACCOUlmNO, PREsERVE AsSETS, CoMPEL CONVERSION OF ASSETS, AND TERMINATE TRUST -10-

56 Exhibit B, Page 10 of 33

57

Having drafted GWB Trust, Albert Barcroft would have been fully aware that he was demanding

an action which could be legally executed only under an appropriate notice and unanimous vote

by all Beneficiarie&. Neither was ever conducted.

30. Upon receipt of Beverly Miller's notice, Plaintiffs promptly, within mere hours,

emailed Beverly Miller with the advice that Albert Barcroft was not the only member of GWB

Trust and that, as Trustee, Beverly Miller would be accountable to aU Beneficiaries. Plaintiffs

further advised Beverly Miller not to disburse the assets and to seek legal counsel. Beverly

Miller chose to ignore Plaintiffs' email, despite having full access to the GWB Trust agreement

prohibiting transfers of the principal without unanimous authorization from all Beneficiaries.

Beverly Miller never confinned to Plaintiffs she ever transferred the assets.

31. GWB Trust Provision 7.2 stated:

No part of the principal may be disposed of during the life of the trust unless first commanded by a written order in which benejlcilzrles with 30 votes (unanimous) concur and sign ordering such sale and dispoaaL

32. In violation of GWB Trust Provision 7.2, and against Plaintiffs' advice, on

November 27, 2013, Beverly Miller signed and had notarized two (2) Mineral Deeds ("the

Deeds"), which conveyed 57.19% of the mineral interests held by GWB Trust to GBU Trust. It

remains unclear how Beverly Miller arrived at her calculations. 10 Plaintiffs had no opportunity to

10 Plaintiffs do not deny that on the surface the involved calculations might be complicated enough to frustrate someone without basic computing skills. However, Plaintiffs nevertheless confess to being absolutely astounded at how Beverly MiUer arrived at her 57. I 9010 figure for the assignment of interest as reflected in the Deeds. Under the maker of the Deed's deft word-smithing and number-crunching abilities, Pentex's stated interest of less than 25% in GWB Trust suddenly and miraculously ballooned, like a trim lady in her sixth or seventh month of pregnancy, to more than twice the original size. Even if Howard Kirk Gibbs' interest had been added to Pentex's interest, the total would not reach 57.19%. Plaintiffs are left to assume that the supreme touch of Albert Barcroft's legal and math wizardry somehow managed to inseminate GWB Trust figures. The result was a thing very carefully and thoroughly nourished in the gestation period during Albert Barcroft's tutelage of Beverly Miller's Trusteeship.

PLAINTIFFS' ORIGINAL PETITION TO REMOVE TRUSTEE, APPoiNT SUCCESSOR TRUSTEE, COMPEL TRUST ACCOUNTING, PREsERVE AsSETS, CoMPEL CONVERSION OF ASSETS, AND TERMINATE TRUST protest the transaction or to can for a vote by the Beneficiaries of GWB Trust, as Plaintiffs were

not infonned of Beverly Miller's actions at the time. Plaintiffs obtained copies ofthe Deeds only

much later and only under their own agency.

33. On or about December 2, 2013, certainly several days after the date the Deeds

were notarized, Plaintiff Candace Walton received a letter from Albert Barcroft, which he also

addressed to Plaintiff Kenneth Gibbs and Defendant Howard Kirk Gibbs. Albert Barcroft stated

that, as Agent for Pentex and Renhaw, he was invoking his right to demand a split of the assets

because Pentex wished to withdraw from OWB Trust.

34. On December 12, 2013, again without the knowledge of Plaintiffs and without

any acknowledgement of the transfer of Renhaw's interest in the Estate to GWB Trust, the two

(2) Deeds were recorded in Denton and Wise Counties. Again, Plaintiffs had no opportunity to

protest the transaction, or to call for a vote by the Beneficiaries of GWB Trust. Plaintiffs do not

know the total amounts of oil and gas royalties forwarded directly to GBU Trust from December

15, 2013, to March 15, 2014 from four (4) companies (collectively, "the oil companies")- Trio

Consulting and Management, LLC ("Trio"); Devon Energy Company ("Devon"); JW Operating

Company ("JW''); and Conoco Phillips, Inc. ("Conoco").

35. Meanwhile, with the Plaintiffs remaining ignorant of the transfers, relationships

among the Beneficiaries of OWB Trust continued to be heavily strained, as Beverly Miller and

Albert Barcroft were strongly resistant to hearing out the Plaintiffs' concerns regarding GWB

Trust in general. Albert Barcroft denied that a Trustee was legally bound to produce accoWltings.

Albert Barcroft also balked at Plaintiffs' request for verification that GWB Trust was tax-

compliant. His responses to Plaintiffs' requests grew so acrimonious that Plaintiffs' suspicions of

PLAINTIFFS' ORIGINAL PETITION TO REMOVE TRUSTEE, APPOINT SUCCESSOR TRUSTEE, COMPEL TRUST ACCOUNTING, PRESERVE ASSETS, COMPEL CONVERSION OF ASSETS, AND TERMINATE TRUST -12-

58 Exhibit B, Page 12 of 33 foul play greatly magnified. Beverly Miller continued to prove her loyalty to Albert Barcroft by

deferring to his view that no production of records was required. Whenever challenged about her

willingness to cede to Albert Barcroft's orders, Beverly Miller would pass herself off as an

elderly, infirmed person, who was acting as Trustee for GWB Trust out of courtesy, with

kindness and frienjship, but without much compensation and without much knowledge of the

obligations involved in the position.

36. Similarly, despite having been entrusted to prepare OWB Trust's tax returns,

Danny Unger ignored Plaintiffs' repeated requests for production of records concerning income

and expenses. Danny Unger also showed no initiative in taking a firm stand against Albert

Barcroft's instructions to Beverly Miller to withhold financial disclosures about GWB Trust. As

a former Certified Public Accountant, Danny Unger might not have been privy to the laws, but

he defmiteJy should have been privy to basic accountiitg principles, including accurate and

honest records of an entity's financial status, open to parties legally entitled to review them.

37. Facing what Beverly Miller admitted was administration under Albert Barcroft's

influence and guidance, on December 13, 2014, and still unaware of Beverly Miller's transfer of

GWB Trust assets to OBU Trust, Plaintiffs formally requested copies of IRS Form 1041 for the

years 2011 - 2012 and accounting of GWB Trust, to be produced only by a disinterested third

party, such an accounting firm or a Certified Public Accountant, and according to standard

accounting practices.

38. Plaintiffs specifically requested that the accounting not be completed by either

Albert Barcroft or his associate, Danny Unger. However, Albert Barcroft and Howard Kirk

Gibbs were equally adamant in their demands that only Danny Unger produce this accounting.

PLAINTIFFS' ORIGINAL PETITION TO REMOVE TRUSTEE, APPOINT SUCCESSOR TRUSTEE, COMPEL TRUST ACCOUNTING, PRESERVE AssETS, CoMPEL CONVERSION OF AsSETS, AND TERMINATE TRUST -13-

59 Exhibit B, Page 13 of 33

For her own part, Reverly Miller again quoted Albert Barcroft in that all GWB Trust provisions

invoked had to be voted on by all parties. Ultimately, however, Beverly Miller asked Danny

Unger to assist her with the task, as Danny Unger had previous knowledge of GWB Trust

financials.

39. On December 18, 2013, Albert Barcroft, signing in the capacity of Legal

Representative of Pentex, but not of Renhaw, noticed the Estate, including Executor Kenneth

Gibbs and the Estate's three (3) attorneys, tl1at a substantial portion of all future distributions

from the Estate intended for GWB Trust must be distributed and made payable to GBU Trust.

All relevant parties determined that they would not react to Albert Barcroft's demands, as his

Notice to the Estate had no legal authority.

40. Plaintiffs continued the campaign to secure information about GWB Trust's

financial standing, including its income and expenses. Finally, months after first being

approached for an accounting, on February 3, 2014, Beverly Miller forwarded to the Plaintiffs a

rudimentary accounting for 2011 - 2013, which consisted of only net income and distributions to

the Beneficiaries of OWB Trust, but which included no other expenses, including administrative

costs.

41. In a very small sentence at the end of a long tirade of explanations, the accounting

reflected that 20.04% ofGWB Trust's 35.04% interest in the Estate had been transferred to GBU Trust. 11 Because the accounting did not provide necessary details, the Plaintiffs again contacted

11 Arriving at the correct percentages of interest of Beneficiaries in GWB Trust is a convoluted process. The origins of the numbers t:race back to the FSA, which in tum contained figures based on the natural heirs' inheritances from the Estate of Bert Gibbs. GWB Trust received only approximately 35% of the Estate's assets, of which Albert Barcroft was to receive approximately 30%. In tum. of the roughly 30% of 35% of the Estate's assets, Albert Barcroft gave 5% to his attorney, John Skotnik, leaving Albert Barcroft with considerably Jess interest than what Beverly Miller ultimately assigned Pentex ftom GWB Trust Beverly Miller failed to consider the substantial

PLAINTIFFS' ORIGINAL PETITION TO REMOVE TRUSTER, APPOINT SUCCESSOR TRUSTEE, COMPEL TRUST ACCOUNTING, PREsERVE ASsETs, COMPEL CONVERSION OF ASSETS, AND TERMINATE TRUST ·14-

60 Exhibit B, Page 14 of 33

~ ~--··---~-~ ~~~~~~~~~-----------------------~

Beverly Miller for specifics. On February 14,2014, Beverly Miller provided bank statements and

monthly expense spreadsheets for 2012 and 2013. Included among the financial documentation

was infonnation related to administrative expense.

42. Due to Albert Barcroft's interference and insistence that providing financial

records was not legally required of the Trustee, Beverly Miller failed to make available for

review the two (2) tax returns in question. To date, Beverly Miller has offered no evidence that

GWB Trust tax returns were ever filed, nor that Pentex, a foreign entity, paid all required U.S.

Federal taxes, pursuant to Internal Revenue Code.

43. During a review of the rudimentary accountings, Plaintiffs discovered the transfer

of assets from GWB Trust to GBU Trust. Plaintiffs immediately contacted Beverly Miller

concerning the illegal assignment. Beverly Miller stated that she was told by "an attorney" that

she must transfer these assets. To date, Beverly Miller refuses to provide Plaintiffs with the name

of this phantom attorney. Beverly Miller also stated that she did not know the name of the party

who gave her the Deeds to sign or who recorded the Deeds. According to Beverly Miller, such a

flurry of emails was exchanged among various parties that it is simply impossible to recall who

directed what.

44. Plaintiffs conducted an on-line search and located the two (2) very lengthy

Mineral Deeds. Beverly Miller or Albert Barcroft may well have recorded other deeds of which

difference between a percentage of Estate assets and a percentage of GWB Trust assets. Beverly Miller's reliance on numbers in existence previous to the creation of GWB Trust is curious. Those numbers should not impact the Beneficiaries• percentages of interest as set forth in GWB Trust. Signed and agreed to years after the FSA was executed, GWB Trust's agreement took into account the various factors Which initially ·affected the heirs' percentages of interest in the Estate, including assignments of Interest from Albert Barcroft to John Skotnik. Any distribution or assignment from GWB Trost therefore must adhere to the percentages as established by GWB Trust, which takes precedent over previously signed agreements. Of course, in reality, none of the interest in GWB Trust should be owned by Albert Barcroft, as Renllaw transferred its interest in the Estate back to GWB Trust, not to Albert Barcroft, nor to Pentex.

PLAINTIFFS' ORIGINAL PETITION TO REMOVE TRUSTEE. APPOINT SUCCESSOR TRUSTEE, COMPEL TRUST ACCOUNTING, PRESERVE ASSETS, COMPEL CONVERSION OF ASSETS, AND TERMINATE TRUST -IS-

61 Exhibit B, Page 15 of 33 the Plaintiffs are unaware. As the accountings did not include an inventory, it is not possible to

detennine the exact assets owned by GWB Trust.

45. On March 7, 2014, Howard Kirk Gibbs filed an Application to Remove the

Executor in the Estate matter (''the Application''). 12 Plaintiff Kenneth Gibbs is Executor of the

Estate. A large portion of the filing was devoted to the presumption that Albert Barcroft was not

represented adequately in original Estate settlement activities. The settlement activities under

discussion were those related to the principal assets funding GWB Trust. Howard Kirk Gibbs'

Application also addressed the sale of multiple Estates' properties, transactions which Albert

Barcroft himself argued for, as those sales stand to produce ready cash income for the Estate.

Despite having transferred to Renhaw all his interest in the Estate, Albert Barcroft continued to

argue that he was entitled to a percentage of Estate income.

46. On March 12, 2014, Plaintiffs demanded that Beverly Miller (l) recall the GWB

Trust assets assigned to GBU Trust, (2) produce account records, and (3) initiate the necessary

procedures to terminate the GWB Trust and distribute the assets fairly, equitably, and legally.

Plaintiffs provided a deadline of March 21, 2014, to comply with the demands. Plaintiffs'

correspondence to Beverly Miller spelled out in detail Plaintiffs' reasoning for the demands,

including evidence that the assignment from GWB Trust to GBU Trust was shockingly out of

proportion to the amount of interest which Pentex allegedly holds in GWB Trust.

47. Plaintiffs' demand to Beverly Miller also pointed out the damaging fact that direct

payment of royalties to GBU Trust from the oil companies meant that royalties were not, and

12 lt is wtclear if Howard Kirk Gibbs will continue to receive any portion from the Estate of Bert Hughes Gibbs. as Howard Kirk Gibb's Application violates a provision in the FSA. If the provisions in the FSA are upheld. Howard Kirk Gibbs will be disinherited.

PLAINTIFFS' ORIGINAL PETITION TO REMOVE TRUSTEE, APPOINT SUCCESSOR TRUS1EE, COMPEL TRUST ACCOUNTING, PRESERVE AsSETS, COMPEL CONVERSION OF ASSETS, AND TERMINATE TRUST -16-

62 Exhibit B, Page 16 of33 cannot bet appropriately submitted to GWB Trust. Thus, administrative costs, including property

taxes, cannot be covered by all Beneficiaries of GWB Trust pro rata. Also, Beverly Miller was ·

advised that her actions violated Plaintiffs' rights.

48. On March 14, 2014, via email and certified mail, Plaintiffs also noticed Albert

Barcroft of the illegal transfers and of the March 12,2014, demands made to Beverly Miller, and

Plaintiffs addressed demands that would also be made of Albert Barcroft. Pentex, and GBU

Trust, should Plaintiffs• concerns be ignored.

49. Beverly Miller did not respond to Plaintiffs' demands and to date continues to

profess her innoceuce.

50. Thus, to preserve GWB Trust assets, on March 13, 2014, Plaintiffs requested that

four (4) oil companies suspend all royalty payments to the GWB Trust and to GBU Trust, until

the issue of the illegal transfer was resolved. All four (4) companies responded that royalties

would be suspended pending further notice.

51. On March 22t 2014, Plaintiffs emailed Beverly Miller a courtesy reminder of the

deadline for complying with Plaintiff's demands and notified her of the responses from the oil

companies. Beverly Miller did not acknowledge the courtesy reminder.

52. On March 27, 2014, Plaintiffs were informed that Danny Unger represented

himself as Trustee for GBU Trust before the oil companies and directed that royalties to GBU

Trust must not be cruspended until forced by the Court to do otherwise. Despite Danny Unger's

order, however, the oil companies continued to honor their guarantee of suspension, meaning

that neither GWB Trust nor GBU Trust will receive royalties until satisfactory resolution of the

matter.

PLAINTIFFS' ORIGINAL PETmON TO REMOVE TRUSTEE, APPOINT SUCCESSOR TRUSTEE, COMPEL TRUST ACCOUNTING, PRESERVE ASSETS, COMPEL CONVERSION OF ASsETS. AND TERMINATE TRUST -17-

63 Exhibit B, Page 17 of 33 53. On March 28, 2014, Beverly Miller acknowledged that legal counsel advised her

of the inappropriate transfer of GWB Trust's assets. Beverly Miller admitted that she had

spoken with all interested parties, who agreed to return the assets to the GWB Trust. Beverly

Miller further affirmed that she would reassign the assets to GWB Trust. She continued refusing

to admit knowledge of who drafted and recorded the Deeds, which she signed and had notarized.

She maintained her innocence in regard to the transfer, and continued insisting that she was

simply a kind, comteous person doing a good deed.

54. Faced with certain legal action, on March 29, 2014, Albert Barcroft pledged that,

provided no further adverse action would be taken against Defendants, he would "do what it

takes to get the minerals returned as rapidly as possible." Albert Barcroft maintained that: (1)

"the way she saw it," Beverly Miller acted in good faith regarding GWB Trust and the transfers;

(2) Albert Barcroft's only duty was to return to GWB Trust the assignment of minerals rights to

GBU Trust, as well as the royalties received by GBU Trust from the date of the assignment to

the present; and (3) by his doing so, Plaintiffs would be ''made whole." A1bert Barcroft further

promised that Beverly Miller "will not be easily influenced in the future" and emphasized that he

could "see where [he, Albert Barcroft] might also become paranoid if [he were] on the other

side." The pledge failed to address any possible redress for Plaintiffs beyond the return of the

mineral rights to GWB Trust. It did not mention the importance of "making good" issues such as

property taxes and the assignment of interest more than double the amount ofPentex's presumed

interest.

55. Within twenty-four (24) hours, on March 30, 2014, Albert Barcroft rescinded the

conciliatory gesture to return the "minerals as soon as possible." He cited unnamed persons'

PLAINTIFFS' ORIGINAL PETITION TO REMOVE TRUSTEE, APPoiNT SUCCESSOR TRUSTEE, COMPEL TRUST ACCOlJIIITING. PRESERVE ASSETS, COMPEL CONVERSION OF ASSETS, AND TERMINATE TRUST -18-

64 Exhibit B, Page 18 of 33 advice that he did not represent either of the Trusts or Beverly Miller. Furthennore, Albert

Barcroft maintained that he had ;•no authority to make any deal on the ongoing matter." He

assured Plaintiffs that he would cooperate with Beverly Miller in ensuring that the wrong done to

Plaintiffs would be righted.

56. To date, no action has been taken by any of the Defendants to fulfill the promise

of"making Plaintiffs whole."

v.

CAUSES OF ACTION

57. Due to the duplicitous and underhanded manner by which GBU Trust seized

ownership of GWB Trust assets. communications and relationships among the interested parties

in GW.B Trust have irrevocably broken down. Patterns of Defendants' conduct, including their

communications, indicate that: (1) GBU Trustee is Danny Unger; (2) GBU Beneficiaries are

Howard Kirk Gibbs, Albert l!arcroft, and Danny Unger, and {3) a there is a conspiracy among

Beverly Miller, Howard Kirk Gibbs, Albert Barcroft, and Danny Unger - a conspiracy designed

specifically to gain GWB Trust assets unlawfully. Defendants clearly have no intention of

honoring their pledges to restore stolen assets to OWB Trust unless there is court intervention.

58. Fraud. Defendants' actions constituted fraud, as that term is legally defined, in

that Albert Barcroft represented himself to Plaintiffs as empowered to offer legal services,

leading to conspiracy with Beverly Miller, floward Kirk Gibbs, and Dmmy Unger. and to the

substantial loss of GWB Trust assets. 13 By practicing law without a license, Albert Barcroft

Altho~gh not licensed to practice law, Alben Barcroft, self-described "Legal Representative" of both Pentex and 13

GBU Trust, practiced law by drafting the GWB Trust document, thereby creating the potential for both unjust enrichment and undue influence on acting Trustees. lie continues to practice law now, If Albert Barcroft truly ever matriculated at law school, as a presumably intelligent creature, he should be thoroughly ashamed for deluding

PLAINTWFS' ORIGINAL PJiTITION TO REMOVE TRUSTEE, APPOINT SUCCESSOR TIWSTEE, COMPEL TRUST ACCOUNTING, PRESERVE ASSETS, COMPEL CONVHRSION OF AsSETS, AND TERMINATE TRUST -19-

65 Exhibit B, Page 19 of 33 exerted undue influence over the Trusteeship of GWB Trust, to the extent that assets were

illegally transferred, posing financial hann to Plaintiffs.

59. Conspiracy. Beverly Miller, Howard Kirk Gibbs, Albert Barcro~ and Danny

Unger committed acts that constituted a civil conspiracy, as those tenns are legally defined, with

the specific intent to deprive GWB Trust of its assets. 14

60. Theft and Unjust Enrichment. Defendants' actions resulted in the loss of

significant GWB Trust assets and constituted a violation of the Theft Liability Act in violation of

Texas Penal Code Chapter 31.03, including theft by deception, deprivation, and appropriation. 15

himself that he could get away for long with participating in such an obviously illegal act, one that he seemed very proud of, one that he no doubt masterminded and instigated, one that he made absolutely no attempt to cover up beyond fending off Plaintiffs' repeated requests for full disclosure and deliberately withholding the accounting of GWB Trust. As crimes go, Albert Barcroft and Beverly Miller's was one no more and no less than inexplicably arrogant: it was the case of the Trustee and the Beneficiary, who aJiowed their (mis)Deeds to be recorded literally and publically for all to see. 14 Plaintiffs' consistent requests for full disclosure, complete accountings, and assurance of tax compliance were an met, without exception, by Defendants' standard reply that no such production to Beneficiaries was necessary or required. Beverly Miller, Albert Barcroft, and Danny Unger were united in their opposition to submission of critical trust records to Beneficiaries. Beverly Miller conspired with Albert Barcroft and Danny Unger to dispose of GWB Trust assets in a manner favorable to Albert Barcroft. Both Albert Barcroft and Danny Unger benefited substantially from the unlawful acquisition of those assets. Upon Albert Barcroft's instruction and direction, Beverly Miller signed before a public notary two (2) lengthy Mineral Deeds assigning a majority portion of the interest in the GWB Trust to GBU Trust. The Deeds were filed for record on December 12, 2013. Beverly Miller's wining and deliberate cooperation with Albert Barcroft to obtain GWB Trust assets unethically and illegally is evidenced by the fact that Beverly Miller signed the Deeds prior to Plaintiffs' receipt of the Notice demanding the split of GWB Trust assets, leaving Plaintiffs with no ability to hold a vote, per GWB Trust agreement, or to seek oourt guidance. Beverly Miller's comments that she ••always followed Al's advice" similarly reflect a shared intent to defraud GWB Trust. Howard Kirk Gibbs was also complicit in the conspiracy to obtain funds illegally from GWB Trust. His Application to Remove the Executor of the Estate was filed at a critical juncture during the Plaintiffs' inquiry into the financial status of GWB Trust - partly, no doubt, because Howard Kirk Gibbs sought to deflect attention away from the administration ofGWB Trust. The argument promoted in the Application tied him to Albert Barcroft, who illegally benefited from the assignment ofGWB Trust assets to GBU Trust. Additionally, Albert Barcroft's March 29, 2014, correspondence specifically stated that Plaintiffs would be "made whole" by the return of assets to GWB Trust. Albert Barcroft did not denote that, as a Beneficiary ofOWB Trust, Howard Kirk Gibbs should also be made whole. It is reasonable to believe, therefore, that Howard Kirk Gibbs already profited from the transfer of GWB Trust assets to GBU Trust and that it is not necessary to "make him whole." " GBU Trust, and its Beneficiaries- Howard Kirk Gibbs, Albert Barcroft, and Danny Unger- harmed Plaintiffs by knowingly and unlawfully gaining substantial assets which rightfully belong to GWB Trust. As Beneficiaries of GBU Trust, the three (3) gentlemen received an as-yet undetermined sum of royalties from the oil companies from December 15, 2013, through March 15, 2014, due to the illegal and unauthorized transfer of mineral rights. The extent of the theft is unknown at this time. Other GWB Trust assets unknown to Plaintiffs could now also be

PLAINTIFFS' ORIGINAL PETITION TO REMOVE TRUSTEE, APPOINT SUCCESSOR TRUSTEE. COMPEL TRUST ACCOUNTING, PRESERVE ASSETS, COMPEL CONVERSION OF ASSETS, AND TERMINATE TRUST -20-

66 . Exhibit B, Page 20 of 33 61. Embea:dement. Beverly Miller, as Trustee to GWB Trust, and Albert Barcroft,

as Advisor to Trustee, committed acts, legally defined as embezzlement, in violation of Texas

Penal Code 31.03. 16 The act of embezzlement deprived GWB Trust of its lawfully owned assets.

62. Breach of Fiduciary Duty. By her acts of heeding advice of a non-attorney

and failing to product accountings as requested by Plaintiffs, and through the unauthorized

disposition of GWB Trust assets, Beverly Miller breached fiduciary duty to the Beneficiaries of

the GWB Trust, as the tenn is legally defined. 17

recorded in GBU Trust's name. Due to Beverly Miller's, Albert Barcroft's, and Danny Unger's reluctance to provide accountings and inventory to Beneficiaries, Plaintiffs have no way of ascertaining which assets were originally held by GWB Trust. What is certain is that Plaintiffs will continue to be harmed by loss of assets in the future, unless the Court forces the return of the assets deeded to GBU Trust to GWB Trust Howard Kirk Gibbs is fully aware of the unlawful enrichment to GBU Trust. In an email to Plaintiffs, Howard Kirk Gibbs gloated about the transfer and derided what be assumed was Plaintiffs' inability to take action against GBU Trust for the fraudulent transfer of assets. 16 Beverly Miller and Albert Barcroft plotted, and succeeded, in embezzling substantial assets from GWB Trust As a self-avowed "Legal Representative" (one apparently replete with education, but, sadly, not much else, no license to practice, for instance, and no principles which would allow him to sit for the Bar exam), Albert Barcroft, in a highly ironic state considering the trust issues at band. managed to estabUsh himself as an authority of all things trust-related. According to Beverly Miller herself, Albert Barcroft has long functioned as the brain behind GWB Trust's administration. As Devotee of Albert Barcroft, and simultaneous Trustee to OWB Trust, Beverly Miller bad relatively unlimited access to preswnably invaluable and much appreciated guidance from a Beneficiary with a penchant for self-interest, plus she enjoyed the ability to represent GWB Trust with the stroke of a pen before a notary public. The moment Beverly Miller signed the Deeds giving away 57.19% interest to a single Beneficiary, one whose advice she took above all others, all the elements of embezzlement - position, authority, motive, opportunity, access to assets, all of which Beverly Miller tlf\ioyed, and all of which she was more than happy to share with good friend and Beneficiary Albert Barcroft - converged in an illegal act that should have been shockingly, embarrassingly, and painfully apparent, even to a self-avowed average and uneducated Trustee such as Beverly Miller herself. Even a high school student graduating from one of today's institutions of questionable quality would understand that Beverly Miller and Albert Barcroft, working together and without consent of the owners, stole something that did not belong to themselves. 11 Beverly Miller relied on advice of a non-attorney, even while ignoring Plaintiffs' recommendation that she seek bona fide legal counsel. The choice to turn to a close personal friend, one who was vested in her administrative choices, created the classic conflict of interest, which ultimately imperiled GWB Trust Beverly Miller also relied on the advice of Danny Unger, whose encouragement she followed not to produce accountings to Beneficiaries. In the past, Beverly Miller's Trusteeship of GWB Trust has not benefited GWB Trust or Plaintiffs, who together hold more than SO% interest, nor will it benefit OWB Trust in the future. Beverly Miller's fiduciary duty bas now been misdirected toward GBU Trust, although she allegedly holds no interest and no authority with GBU Trust. Her trusteeship of OWB Trust continues to reflect and to be influenced by her close relationship with Albert Barcroft, a Beneficiary of GBU Trust, to which she assigned GWB Trust assets. Her friendship with Albert Barcroft stands hand in hand with her duty to Plaintiffs as Beneficiaries ofOWB Trust, all together in a very murky, muddy conflict of interest. At Albert Barcroft's behest, Beverly Miller disposed of substantial GWB Trust assets without authorization, contrary to Provision 7.2 of the GWB Trust agreement Beneficiaries of GBU Trust were unjustly

PLAINTIFFS' ORIGINAL PETITION TO REMOVE TRUSTEE, APPOINT SUCCESSOR TRUSTEE, CoMPEL TRUST ACCOUNTING, PREsERVE AsSETS, COMPEL CONVERSION OF ASSETS, AND TERMINATE TRUST -21-

67 Exhibit B, Page 21 of 33

VI.

PRAYER FOR RELIEF

63. Pursuant to Texas Property Code Section 13.082.1, the Court is authorized to

remove a trustee for breach of fiduciary duty. Plaintiffs pray to this Court to remove Beverly

Miller as Trustee of GWB Trust. Waymond Walton, who originally acted as Trustee for GWB

Trust, agrees to be appointed and will act under the Court's guidance if appointed. Or, in the

alternative, Plaintiffs request that the Court appoint a non-interested third party as Successor

Trustee

64. Plaintiffs pray to this Court to freeze all assets of GWB Trust and GBU Trust, so

that assets are not intentionally dissipated and can be recovered and rightfully restored to GWB

Trust.

65. Plaintiffs pray to this Court to compel an accounting, to be conducted according

to standard accounting practices by a non-affiliated Certified Public Accountant or accounting

firm, and to be submitted to all Beneficiaries for review. Plaintiffs further pray to this Court to

order an inventory of all assets held by GWB Trust during the Trusteeship of Beverly Miller. In

order to determine whether Beverly Miller transferred other assets unknown to Plaintiffs from

GWB Trust, Plaintiffs request that Beverly Miller be compelled to disclose all transfers of assets

to and from GWB Trust during her Trusteeship. Plaintiffs also request that Beverly Miller be

compelled to disclose any remuneration received from GWB Trust or any other interested party

for services involving the inappropriate transfer of assets from GWB Trust.

enriched through Beverly Miller's actions. Beneficiaries of GBU Trust are Howard Kirk Gibbs, Albert Barcroft, and Danny Unger, the same persons with whom she conspired.

PLAINTIFFS' ORIGINAL PETITION TO REMOVE TRUSTEE, APPOINT SUCCESSOR TRUSTEE. COMPEL TRUST ACCOUNTING, PRESERVE ASSETS, COMPEL CONVERSION OF ASSETS, AND TERMINATE TRUST

68 Exhibit B, Page 22 of 33 66. Plaintiffs pray to this Court to compel the conversion of the assets, including cash

and mineral interests which GBU Trust received from GWB Trust, such that GWB Trust

rightfully regains possession of the assets. Plaintiffs also request the Court to compel turnover to

GWB Trust all royalty interest and monies received by GBU Trust, as well as all other assets

which GBU Trust has received as a result of the transfers of assets.

67. Plaintiffs pray to this Court to compel Albert Barcroft, individually and as Legal

Representative; Pentex Foundation; and Pentex Royalty Trust to return to GWB Trust all assets

received from GWB Trust and GBU Trust from the date of GWB Trust's inception to today, as

Albert Barcroft never held interest in GWB Trust, having assigned his interest away to Renhaw,

who in turn assigned interest to GWB Trust.

68. Plaintiffs pray to this Court to compel Howard Kirk Gibbs to return to GWB Trust

all assets received from GBU Trust, as GBU Trust's assets were illegally obtained.

69. Plaintiffs pray to this Court to compel Danny Unger to return to GWB Trust all

assets received from OBU Trust, as GBU Trust's assets were illegally obtained.

70. Plaintiffs pray to this Court to tenninate the GWB Trust, including supervising

the equitable division of the assets to Beneficiaries, pro rata, such that Plaintiffs and Howard

Kirk Gibbs each receive one-third (1/3) of the assets.

71. Plaintiffs pray to this Court to enjoin Beverly Miller, individually, to be

personally responsible for attorney fees resulting from these proceedings, and to return to GWB

Trust all remuneration for services rendered to GWB Trust from March 8; 2011, to the present.

Further, Plaintiffs request that all Defendants be strictly prohibited from employing funds from

either GWB Trust or GBU Trust for related legal costs.

PLAINTtFFS' ORIGINAL PETITION TO REMOVE TRUSTEE, APPOINT SUCCESSOR TRUSTEE, COMPEL TRUST ACCOUNTING, PRESERVE AssETS, COMPEL CONVERSION OF ASSETS, AND TERMINATE TRUST -23-

69 Exhibit B, Page 23 of 33 72. Plaintiffs pray to this Court for Plaintiffs' attorney's fees, to be obtained from

Defendants personaJly and individually, not from assets in any way belonging to GWB Trust,

including the assets transferred from GWB Trust to GBU Trust.

VII.

DAMAGES

73. As a result of Beverly Miller's breach of fiduciary duty to Beneficiaries, and as a

result of the fraud, conspiracy, and theft of GWB Trust assets committed by all Defendants,

Plaintiffs have incurred the following element of damage, both in the past and future, and both

general and special: the loss of at least $250,000.

VIII.

EXE~LARYDAMAGES

74. Plaintiffs would show that the harm sustained by Defendants' intentional bad

conduct, including criminal acts of fraud, embezzlement, theft, and breach of fiduciary duty,

Defendants should be penalized with exemplary damages for which Plaintiffs seek recovery.

IX.

REQUESTS FOR DISCLOSURE

75. Pursuant to Rule 194, each Defendant is requested to disclose within 50 (fifty)

days of service of this Request the information or material described in Rule 194.2 (a) - (1).

WHEREFORE, PREMISES CONSIDERED, Plaintiffs pmy that the Defendants be cited

to appear herein and that upon final hearing hereof, they have and recover the full extent of

Plaintiffs' damages as pled and pmys for reasonable and necessary attorney fees, and such other

PlAINTIFFS' ORIGINAL PETITION TO REMOVE TRUSTEE, APPOINT SUCCESSOR TRUSTEE, COMPEL TRUST ACCOUNTING, PRESERVE AsSETS, COMPEL CONVERSION OF ASSETS, AND TERMINATE TRUST

70 Exhibit B, Page 24 of 33

71

and further relief, both at law and in equity, to which they may be justly entitled and will ever

pray.

Respectfully submitted,

LAW OFFICES OF CHRISTY LEE, P.C.

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

ATTORNEY FOR PLAINTIFF

PLAIN1.1f'FS' ORIGINAL PETITION TO REMOVE TRUSTEE, APPOINT SUCCESSOR TRUSTEE, COMPEL TRUST ACCOUNTING, PRESERVE ASSETS, COMPEL CONV£RSION Of ASSETS, AND TERMINATli TRUST

Apr011412:15a p.1

GWB Family and :Friends Trust

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Apr011412:15a p.2

THE STATE OF TEXAS § § GWB Family and Friends Trust COUNTY OF TARRANT §

TRUST 'DECLARATION

This declaration of tru.•,;t is made this 7~ay of November, 2008, between Kenneth Vern Gibbs, a resident of Tarrant County, Texas; Candace Gibbs WaltoD, a resident of Parker County, Texas; and Howard Kirk Gibbs, a resident of Denton County, Texas, collectively the "Settlor" of this trust agreement, regarding. and intended to distribute, the division o: the gross net proceeds due these parties from the Estate of Bert Hughes Gibbs.

ARTICLE I- THE TRUST PURPOSE

1.1 Propertv in Trust: The beneficiaries of this trust are beneficial owners of real property, including, but not limited tQ, land, oil and gas royalties, and working interest in oil and gas wells that was passed to them from the Estate of Bert Hughes Gibbs, who is now deceased, under the terms and conditions of his La.<~t Will and Testament.

1.2 Purpose of Trust: The overriding purpose of this trust is to collect and hold all property left to, or accumulated by, the beneficiaries, or any individual beneficiar~r, hereto~ to accoWit for and pay all liabilities pertaining to such property. inc.ludin~ but not limited to income taxes, property taxes, and any other governmental taxes or fees; and then distribute the remaining proceeds to the beneficiaries hereto in a marmer conunensurete with their beneficial interests, as shown herein.

1.3 Under the Laws of the State of Texgs: 1t is the Settlor's intention that this trust be in full compliance, and organized under, the Texas Trust Code. Any provision found by a court of competent jurisdiction to be in vio[ation of any section of the Texas Property Code, or any law of the State of Texas, shall either be automatically amended to comply with such code or law in such a manner as to keep its original meaning or putpose as closely as possible; or, if no such amendment is possible, that particular provision shaH be stricken from the trust agreement. In either case. it shall be deemed to have no effect on the 1rust agreement in general. or upon any particular provision within the trust agreement.

ARTICLE II- NAME OF TRUST

The trust shall be know as the GWB Family and Friends Trust.

GWB Family and Friends Trust Page 1 of6

73 Exhibit B, Page 27 of33

74

Apr,011412:15a ' p.3

ARTICLE III- BENEFICIARIES

3.1 Beneficiaries: The beneficiaries, and percentage of beneficial interests, are as foHows;

Kenneth Vern Gibbs: 25.011614 % of the trust; Candace Gibbs Walton: 25.011613% ofthe trust; Howard Kirk Gibbs: 25.011613 %of the trust; Pentex Foundation: 24.96516% ofthe trust.

3.2 Vgting Shares: Actions and decisions concerning the trust shall be governed by vote of the beneficiaries hereto. Sixteen (16) votes will represent a majority of the votes on any issue unless specifically set herein at a different vote requirement. Each beneficiary shan have following votes in any matter of the trust for which a vote is called:

Kenneth Vem Gibbs: 5 votes; Candace Gibbs Walton: 5 votes; Hm\Tllid Kirk Gibbs: 5 votes; Pcntex Folllldation: 15 votes.

3.3 Voting Pro~dm·.s:!: Votes may be cast at any time and any place agreed upon by at least two (2) of the beneficiaries, and 16 votes will carry any issue. Any beneficiary hereto shall be allowed to call for a vote on any issue. Percentages of beneficial interest, or the method in which distribution are made, in the trust or its proceeds shall require a unanimous vote with all parties voting (30 votes).

ARTICLE IV- REVOCABLE

This trust shall be revocable.

ARTICLE V- APPOINTMENT OF TRUSTEE

Settlor hereby appoints Waymond Jmnes Walton as the Independent Trustee of this trust. Trustee shall serve without bond or supervision of any court while in conformity with the tenns laid out in this trust and its minutes.

ARTICLE VI- TRUST ESTATE

The Trust Estate shall be comprised of property transferred to the trust in the fonn of Deeds of Trust assigned to this trUst, and filed in the county records of Denton and Wise Counties, the State of Texas~ and, royalties due Settlor from the Estate of Bert Hughes Gibbs as per Bert Hughes Gibbs Last Wi11 and Testament. Other property may be brought into the trust~ and become Trust Property, through agreement in the manner prescribed herein of 16 votes of the voting shares of this trust Property may be bough~;~ sold, exchanged, or transferred upon the approval of the beneficiaries by at least 16 votes cast in the manner prescribed herein.

GWB Family and Friends Trust Page2 of6

75

Ar;r011412:15a p.4 •• I ARTICLE VII~ DISPOSITION OF INCOME AND PRINCJPAL

I 7.1 Duti&s of Trustee: The Trustee is hereby commanded to do the following;

1. Pay all bills and liabilities of the trust unless specifically ordered by a 16 vote I majority to do otherwise in a specific case;

2. Figure, or have professionally figured if approved by a 16 vote majority~ income taxes due on the income of the trust;

I 3. Pay all income taxes due on any income of the trust;

4. Pay all property tax due (and not paid by other entities) on any properly in the trust estate;

I 5. Pay any other debts of the trust which are brought to his attention (the foregoing is conditioned on sufficient funds being available in the trust account);

I 6. Keep a sufficient amount of cash (to be decided by a 16 vote majority) in the main trust account for operating expenses and any kno\\n liabilities upcoming in the immediate future; and, I 7. Divide any overages into proportions equaling the beneficial interests of each party, and deposit the appropriate amount for each specific beneficiary into a an account designated by that beneficiary for private use of that pru.1y.

I 7.2 Disgosition of Prinsaipa1 Dur.i.ng Life of Trust: No part of the principal may be disposed of during the life of the trust unless first commanded by a written order in which I beneficiaries with 30 votes (unanimous) concur and sign ordering such sale oc disposal.

ARTICLE VID- TERIVTINATION I 8.1 Termination of Trust: The trust will terminate twenty (20) years after the first death of any of the beneficiaries hereto.

I 8.2 Distribution upon termination: Distribution upon tennination shall be made in accordance and in direct proportion with the beneficial ownership interest show herein.

I In the case of those beneficial owners who are already deceased> distribution of their portion shall be made 10 their estate, or according to the terms of their "'111.

I ARTICLE IX- TRUST ADMINISTRATIVE AND PROTECTIVE PROVISIONS

The trust shall be administered el',:pecliti<msly and consistently with its terms, free of any I judicial intervention and without order, approval, or other action by a court, subject only to the jurisdiction of a court which is invoked by the trustee or beneficiary, or as otherwise provided by law.

I ARTICLE X-MODIFICATION OF TRUST

I 10.1 ModHication by Texas court: This trust shall be subject to modification or tennination by a Texas court only if such modification or tennination would serve to

I enforce the original intentions of the Settlor, if the intentions of the Settlor are no longer GWD Family and Friends Trost Page3 of6 I

Ap(U1 141l:15a p.5 ·U

I obtainable, or if the trust is used for illegal purposes; the~ and only then, the trustee or I any beneficiary hereto roay seek modification or termination of the trus.t through the Texas courts.

I 10.2 Mggification by interested parties: This trost may be modified by a vote of the beneficiaries in which 30 votes (unanimous) are cast for such modification. The trustee is not authorized to modify the trust in any way without a vote among the beneficiaries in I which 30 votes are cast in favor of such modification.

10.3 Trust Property not subject to Proba~: Any property payable to, or owned by, this I trust shallnot be subject to the claims against the estate of any beneficiary or interested person het'Cto following death, nor shall such benefits be subject to the control of the personal representative of the interested party, nor be included in the property I administered as part of the probate estate of the interested party. Upon the death of any interested party hereto, the property contained in the 1rust shall pass as set forth herein, and under no circumstances shall the property in this trust be considered to be part of the I probate estate of any beneficiary or other interested :party hereto.

10.4 Inalienability: No beneficiary or interested party shall have any right to anticipate, I sell. assign, mortgage, pledge, or otherwise dispose of or encumber aU or any part of the trust estate, nor shall any part of the tn.lst estate including, but not limited to, income, be liable for the debts or obligations, including, but not limited to, alimony. child suppof4 I tax liens,. tax assessmer.t or seizure, of any benefl.ciary or interested party, or be subject to attachment, garnishment, execution, creditor• s bill or any other legal or equitable process unless such is frrst approved by a vote of the beneficiaries in which 30 votes are cast in I favor of such action.

ARTICLE Xl -POWERS OF THE TRUSTEE I The tmstee shall have such powers as are :prescribed to him in the minutes of this trust, and none other. The trustee shall admini!>1et• this trust to the best of his ability within the I powers prescribed to him.

ARTICLE XII- TRUSTEE SUCCESSION I 12.1 Resignation or death of trustee: The trustee may resign by giving 30 days Written notice ofhis intention to do so. In the event of resignation or death ofthe trustee, a new I tmstce may be appointed by a vote ofthe beneficiaries in which 16 votes are cast in favor

• of the new trustee.

12.2 Right of Be.nefic;:iaries to chapge trustee: The beneficiaries may, at any time, elec.t to change trustees by a vote in which at least 16 of the beneficiary votes are cast for such change. The vote must include the person who shall be named as the new trustrre. A 30 II day notice, or payment of 30 days salary or fee, to the trustee being removed must be

• given.

GWB Family and Friends Trust

• 76 Page 4of6

Exhibit B, Page 30 of 33 -··-----------~--

Apr.o11412:16a p,6

I 12.3 No bogd: No trustee, or any successor) shall be required to give any bond in any jurisdiction; and U: notwithstandinB this direction) any bond is required by any law, I statute or rule of court, no sureties shall be required.

I ARTICLE Xlll- TAX NUMBER

The •;tax identification number" assigned by the Internal Revenue Service to this trus1 is I 26--6630588.

ARTICLE XIV~ DEFINITIONS I "Beneficiary" means a person for whose benefit property is held in trust, regardless of the nature of the interest.

I "Court" means a court of appropriate jurisdiction.

I "Income'' shall be as defined in Section 116.002 of 1he Texas Trust Code.

'lnterested Party(ies)" means a trustee, beneficiary, or any other person having an

1

I intere!:.1 in or a claim against the trust or any person who is affected by the administration of the trust

I "Principal" shall be as defmed in Section 116.002 of the Texas Trust Code.

"Property" means any type of property, whether real, tangible or intangible. Jegal, or I equitable.

"Settlor" means a person [or persons] who creates a trust or contributes property to a I trustee of a trust. If more than one person contributes pro:perty to a trustee of a trust, each person is a settlor of the portion of the property in the t:rust attributable to that person's contribution to the trust.

I "Trust property" means property placed in trust by· one of the methods specified in Section 112.001 of the Texas Trust Code or property otherwise transferred to or acquired I or retained by the trustee for the trust.

"Trustee" means the person holding the property in trust.

I -

Except as othervvise provided herein. definitions of words and terms in this trust sball be in accordance with the Texas Trust Code, as amended.

ARTICLE XV- CONSTRUCTION

I 13.1 ConformitY with Statutes: In case of ambiguity or conflict, this trust should be construed in such a manner and shall be deemed to comply with the provisions of fue Texas Property Code, Title 9, Trusts, as amended.

I G\\'B Family and Friends Trust Page 5 of6 I 77 Exhibit B, Page 31 of 33 --------··-----~-~------------

78

---------------------------

Apr-0, 1412:16a p.7 ( '

13.2 Applicable Law: The validity of this trust shall be determined by reference t<1 the laws of TeKas. Questions of construction and administration of this trust shall be determined by reference to the laws of Texas.

13.3 HeadingS of Articles and Sections: The headings of articles and sections are included solely for convenience of reference, and shall have no significance in the interpretation ofthis instrument.

Signed by Kenneth Vern Gibbs (Settlor), Candace Gibbs Walton (Settlor), and Howard Kirk Gibbs (Settlor) who, by their signatures, below indicate their agreement and intent form the above referenced trust and abide by its terms; and Waymond James Walton (frustee), who, by his signature below accepts the office of Trustee on the date indicated on page 1 of this Trust Agreement.

I I

I GWB Family and Friends Trust Page 6 of6 I

April11412:16a t • p.8

..

AFFIDAVIT

THE STATE OF TEXAS § § COUNTY OF TARRANT §

BEFORE ME, the undersigned authority on this day personally appeared Kenneth Vern

Gibbs. Candace Gibbs Walton, Howard Kirk Gibbs, Waymond James Walton, known to me to

be the person whose name is subscribed to the foregoing instrument. and acknowledged to me

that he execu1ed the foregoing instrument for the purposes and consideration therein expressed.

Kenneth Vem Gibbs

tCa,i llM,dJJ(L J1<J,.M, Gibbs Walton iJgJ/& Ifowa;(l Kirk Gibbs ·, :.·.

SUBSCRIBED AND SWORN TO BEFORE ME on this the 7th day ofNovember, 2008,

c

to certify which witness my band and seal of office. ~ ~ jJ_ [.[~ }J !S£v Notary Public in and fur the ;.

State ofTexa.s ·, '.

r I. ,:.•..

~· :

··,.

J.

I "•

o\ \~~\ ~,,,,,{)I

'-~_·~<Y.:.:i;~~::&""'jf!'

79

---------'-_......___E_xh_ih_._it_B_,_P_a_g_e_33_o__f_3_3___

80

Case No. CV-14-41665

PENTEX FOUNDATION § Plaintiff § § Vs. § § FANNIN COUNTY, TEXAS KENNETH VERN GIBBS § CANDACE GIBBS WALTON § HOWARD KIRK GIBBS § 336th JUDICIAL DISTRICT Defendants §

COMES NOW, Howard Kirk Gibbs, Defendant, to file his answer in response to the

above Numbered and Captioned case, and would show the honorable court as follows.

Defendant generally denies each and every allegation, and requires strict proof of each

and all allegations contained therein.

Defendant requests that the court dismiss this defendant from liability in the case.

Respectfully Submitted

Howard Kirk Gibbs 4360 Western Center Blvd. #205 Fort Worth, Texas 76137

PENTEX V. GIBBS MOTION FOR PARIAL SUMMARY JUDGMENT Page I of2 CV-14-41665

81

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing document was delivered, pursuant to Texas Rules of Civil Procedure, to the following parties on this).Jrtt"d.a~ of April, 2014: ~7'#t UP

Pentex Foundation Via Email c/o John Skotnik Attorney of Record P.O. Box 727 Bonham, Texas 75418

Nancy Young, District Clerk Via Certified Mail # 7011 1570 0002 4440 6657 Fannin County, Texas 3361h District Court 101 E. Sam Rayburn Drive, Suite 201 Bonham, Texas 75418

Howard Kirk Gibbs

PENTEX V. GIBBS MOTION FOR PARIAL SUMMARY JUDGMENT Page 2 of2 CV-14-41665

82

-.... 1;.~) ·-

-- .. ~

PENTEX FOUNDATION § IN THE DISTRICT co,p_,R~-{ :_. ~~ \. ':::-:.1~ Plaintiff, § ~Ut. n - N .. ~:-"- .r' / ...-\·:~ \ _..I.-·· § \ CJ ,~- :. . ·'··--·.

-----~.!

v. § 336TH JUDICIAL DISTlffC~·~_'0-: -:;.., -·I:

·--·J .--'·'. . ~.

§ r-- r"""

~ KENNETH VERN GIBBS, CANDACE § GIBBS WALTON AND HOWARD § KIRKGffiBS § Defendants. § OF FANNIN COUNTY, TEXAS

MOTION FOR WITHDRAWAL OF COUNSEL

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES Movant, John Skotnik, Attorney for Plaintiff, Pentex Foundation,

(hereinafter Plaintiff), and brings this Motion for Withdrawal of Counsel, and in support thereof,

shows the Court the following:

I.

Good cause exists for withdrawal of Movant as counsel because Plaintiff consents to this

withdrawal. Said consent is evidenced by Plaintiffs signature affixed hereto.

II.

Good cause exists for withdrawal of Movant as counsel because a potential conflict of

interests.

Ill.

The settings and deadlines in this case are as follows: NONE.

IV.

This Motion is not sought for the purposes of delay.

v.

A copy of this motion bearing the enclosed notice has been delivered to the current

83

address of Plaintiff.

Pentex Foundation Panama Gardens - Unit 2 Hacie Lidice, Capira, Republic of Panama

VI.

Plaintiff was hereby notified in writing of the right to object to this motion.

NOTICE

You are hereby notified that this Motion for Withdrawal of Counsel is set for

hearing at the time and place set out below. You do not have to agree to this motion. If

you wish to contest the withdrawal of John Skotnik as your attorney, you should appear at

the hearing. If you do not oppose John Skotnik's withdrawal as your attorney, you may

notify John Skotnik in writing of your consent to this motion.

VII. Motion is consented to by Plaintiff

Pentex Foundation as Plaintiff, has indicated its consent to the Movant's withdrawal, as

shown on the letter from Pentex Foundation dated 30 April 2014 and attached as Exhibit "A"

and incorporated by reference.

Vlll. Motion is not opposed by Defendant Howard Kirk Gibbs

Movant also advises the Court that the Defendant Howard Kirk Gibbs is not opposed to

this withdrawal as indicated by his letter which is attached as Exhibit "B" and incorporated by

reference.

IX. Motion is not opposed by Defense Counsel

Movant further advises and certifies to this Court that he has conferred with Christina

Lynn Lee, the counsel for the Defendants Candace Walton and Kenneth Gibbs, and she has

communicated that she is not opposed to this withdrawal.

84

WHEREFORE, PREMISES CONSIDERED, Movant prays that the Court enters an

order discharging Movant as attorney of record for Plaintiff, Pentex Foundation, and for such

other and further relief that may be awarded at law or in equity.

Respectfully submitted,

tnik, sbn 18475150 727 Bonh ' , Texas 75418 Tel. (903) 640-4300 Fax. (903) 640-4344 Email: jhskotnik@gmail.com Attorney for Plaintiff Pentex Foundation

==============================

CERTIFICATE OF SERVICE

I certify that on May 2, 2014 a true and correct copy of John Skotnik's Motion for Withdrawal of Counsel was served to each person listed below in accordance with in accordance with the applicable rules of procedure.

Christy Lee Attorney for Kenneth Vern Gibbs and Candace Gibbs Walton, Defendants 777 Main Street #600 Ft. Worth, Texas 76102 TEL: 817-504-6075

85

FAX: 800-437-7901 E-mail: clee@christyleelaw.com

Howard Kirk Gibbs, Defendants 4630 Western Center Blvd #205 Ft. Worth, Texas 76137 Email: hkgibbs@gmail.com

PENi'EX FOUNDATION A Privt;Jte FQundation ofthe RepablicQ/Pdnamd Panama Gardens • l)nit 2 · Hacie l.;idice, Ce~pirai Republtc of Panama

30 Apfil2014

To: .. Joho Skotnik,Attorrrey at Law Bonham, I ex~$ USA · . ·

Dear Sir:

Pentex Foundation is agreeable to your withdrawal as attorney of recot<l from our case . number CV -14~41665 1 .ln Fannin County, Texas USA, if weare at! owed a reasonable time to.

acquire new touns:elin the case. Pentex Foundation does natw<mttbe casE! dropped.

With this communication, your authority to acceptatiy serv.ice or conirnunication of any

kind on behalf of Pent ex Foundation is terminated. AH service and communication from this date forward should go to:

PENTEX FOUNDATION •fanamaGa.rdens -unit;?. Hade llcilce, Cap ira, ·· .• Republic ofPanama

Your withdrawal from this case concludes our business relationship in its entirety.

¥ Guilerrj'Q.;Haft<irte Arrivillaga , .a'~ aging 9frector, Legal Affairs / PENTEX FOUNDATION. '

\ ...

· · · · · · . . . . . . . . . . . . . . . . . .,,.:Fi· ·t~··~- ·~· ;t '>f)li1 tj . .

86 .

87

' '

Howard Gibbs 4360 Western Center Blvd. #205 Fort Worth, Texas 76137 817-233-4423 Email: hkgibbs@gmail.com

May 1, 2014

Dear Mr. Skotnik:

As per our earlier communication, I have no objection to your withdrawal from the case to which I am a party in Fannin County, Texas, case number CV-14-41665.

Sincerely,

Howard Kirk Gibbs

88

SCOTT SMITH ATTORNEY AND COUNSELOR AT LAW

E-MAIL: smithlaw@airmail.net t

l

FACSIMILE: (903) 870-1446 TELEPHONE: (903) 868-8686

May 7, 2014

Nancy Young, District Clerk Fannin County Courthouse ~ 101 East Sam Rayburn Dr., Ste. 201 l j

I Bonham, Texas 75418

RE: Pentex Foundation v. Kenneth Vern Gibbs, et al.; Cause Number ll I CV -14-41665 in the 336th Judicial District Court ofFannin County, Texas.

Dear Ms. Young:

Enclosed please find an original and one copy of the following: Notice of Appearance of Counsel. This will also confirm that a request for disclosure was served upon counsel for Kenneth Gibbs and Candace Walton on this date.

Please be advised, pursuant to the State Bar Rules, the Texas Lawyer's Creed, and respective local rules, that I will be out of the office on the following dates for vacation and continuing education requirements:

May 22-31, 2014 July 24-25, 2014 September 3-12, 2014

Please do not set any matter for hearing or trial during this time, or within three days after the date of such period. I would request that no discovery be served during this period or served as to require a response during this period. I thank you for your attention to this matter.

TSS/bhs

cc: Christy L. Lee, Esq.; Howard Kirk Gibbs, Pro Se.

89

NO. CV-14-41665

PENTEX FOUNDATION, § Plaintiff § § v. § § FANNIN COUNTY, TEXAS KENNETH VERN GIBBS, CANDACE § GIBBS WALTON and HOWARD § KIRK GIBBS, Defendants § 3361h JUDICIAL DISTRICT

NOTICE OF APPEARANCE OF COUNSEL

TO THE HONORABLE JUDGE AND CLERK OF SAID COURT:

COMES NOW, Scott Smith, and enters his appearance as counsel for Pentex

Foundation, Plaintiff in this matter.

State Bar Number 18688900 120 South Crockett Street P.O. Box 354 Sherman, Texas 75091-0354 e-mail smithlaw@airmail.net Facsimile (903) 870-1446 i 1 Telephone (903) 868-8686 1 oj

ATTORNEY FOR PENTEX FOUNDATION

'

NOTICE OF APPEARANCE OF COUNSEL ... PAGE I

90

' 1

CERTIFICATE OF SERVICE

I do hereby certify that a true and correct copy of the above and foregoing document was served upon Christy L. Lee, Esq., of Law Offices of Christy Lee, P.C., 777 Main Street, Suite 600, Fort Worth, Texas 76102, by certified mail, return receipt requested number 7009 2250 0000 2311 3876, and to Howard Kirk Gibbs, ProSe, at 4360 Western Center Blvd., Suite 205, Ft. Worth, Texas 76137, by certified mail, return receipt requested number 7009 2250 0000 2311 4064, on h" ay 7, 2014.

NOTICE OF APPEARANCE OF COUNSEL ... PAGE 2

91

PENTEX FOUNDATION § Plaintiff, § § v. § 336TH JUDICIAL DISTRICT § KENNETH VERN GIBBS, CANDACE § GIBBS WALTON AND HOWARD § KIRK GIBBS § Defendants. § OF FANNIN COUNTY, TEXAS

ORDER GRANTING MOTION FOR WITHDRAWAL OF COUNSEL

On ~~~5_·-~--~J_~--~~-~==~-=~ 2014, the Court considered the Motion for

Withdrawal of Counsel by Movant John Skotnik.

The Court finds that:

1. Good cause exists for withdrawal of Movant as counsel and withdrawal of

Movant is not sought for delay only.

2. Plaintiff consents to the withdrawal of John Skotnik and the court finds that no

party incurs a detriment by allowance of this motion.

3. The Defendants are not opposed to the withdrawal.

4. There is a potentiat conflict of interest.

5. The current settings and deadlines are:

NONE.

IT IS THEREFORE ORDERED that Movant is permitted to withdraw as counsel of

record for Plaintiff and ORDERED that all notices in this cause shall hereafter be served on

Plaintiff either delivered in person or sent by certified and first class mail to the address in the

motion.

IT IS FURTHER ORDERED that John Skotnik, Movant, immediately notify Plaintiff

92

......

Pentex Foundation in writing of any additional settings or deadlines of which John Skotnik now

has knowledge and has not already notified Plaintiff.

--~~9~-~ ~m the dttte ofth1s Ortl@J:

IT IS ORDERED that the Plamttffhtts-"

(l S;-t-~ ~~-·-it> cR.t,~~ ~ .{;~ mseetue ~thcr~~preser.tt 1t te t~~ e~~ 6L.. -f~--.,.._1'~ fL.--/7 -IYj.'rJ2fllt ~NED on ::vhj 2-_ , 2014. ~

~ JUDGE LAURINE BLAKE, PRESIDING

."",...l ·,'

.-·,_ ~ .. "'! • >' -.

Case No. CV-14-41665

PENTEX FOUNDATION § Plaintiff § § Vs. § § FANNIN COUNTY, TEXAS KENNETH VERN GffiBS § CANDACE GIBBS WALTON § HOWARD KIRK GIBBS § 336th JUDICIAL DISTRICT Defendants §

DEFENDANT HOWARD GIBBS' RESPONSE TO DEFENDANTS CANDACE WALTON AND KENNETH GIBBS REQUEST FOR DISCLOSURE

In response to a request for Rule 194 disclosure made by Defendants Candace Walton and Kenneth Gibbs.

COMES NOW, Howard Kirk Gibbs, Defendant, and submits his response to Defendant's Candace Walton and Kenneth Gibbs Request for Disclosure.

a. The correct names of the parties to the lawsuit.

RESPONSE:

1. Plaintiff, Pentex Foundation; 2. Defendant, Kenneth Gibbs; 3. Defendant, Candace Walton; and 4. Defendant, Howard Kirk Gibbs

b. The name, address, and telephone number of any potential parties.

RESPONSE: None.

c. The legal theories and, in general, the factual bases of your claims or defenses of the responding party.

RESPONSE: Defendant, Howard Gibbs, has not committed any wrongful acts as alleged in Plaintiffs' Original Petition.

DEFENDANT'S RESPONSE TO DEFENDANT'S

RE~3"T FOR DISCLOSURE -Page 1-

d. The amount and any method of calculating economic damages.

RESPONSE: No calculations made at this time. Defendant, Howard Gibbs, will amend this response when the same becomes available.

e. The name, address, and telephone number of persons having knowledge of relevant facts, and a brief statement of each identified person's connection with the case.

RESPONSE:

I. Plaintiff, Pentex Foundation, whose address is Panama Gardens- Unit 2, Hacie Lidice, Cap ira, Republic of Panama, Central America; Phone number unknown;

2. Defendant, Candace Walton, by and through her attorney of record, Christy Lee; 3. Defendant, Kenneth Gibbs, by and through his attorney of record, Christy Lee; 4. Defendant, Howard Kirk Gibbs, whose mailing address is:

4360 Western Center Blvd. #205, Fort Worth, Texas 76137; Phone number is 817-233-4423; and 5. Albert Barcroft, the legal representative ofPentex Foundation, P.O. Box 03, Morales, Izabal, 18004, Izabal, Guatemala, Central America; Phone number is 011-502-4888 0964 6. Danny Unger, address unknown to Defendant;

Phone number is 903-948-9708

f. For any testifying expert:

(1) the expert's name, address, and telephone number; (2) the subject matter on which the expert will testify; (3) the general substance ofthe expert's mental impressions and opinions and a brief summary of the basis for them, or if the expert is not retained by, employed by or otherwise subject to the control of the responding party, documents reflecting such information;

(4) if the expert is retained by, employed by, or otherwise subject to your control:

a. all documents, tangible things, reports, models or data compilations that have been provided to, reviewed by or prepared by or for the expert in anticipation ofthe expert's testimony; and b. the expert's current resume and bibliography;

RESPONSE: None.

g. Any indemnity and insuring agreements described in Rule 192.3(1) of the Texas Rules of Civil Procedure.

RESPONSE: None

DEFENDANT'S RESPONSE TO DEFENDANT'S Cause~J!;-14-4! REQ~4T FOR DISCLOSURE -Page 2- Pentex Foundatl/'fs. Gibbs et.

b. Any settlement agreements described in Rule 192.3(g) of the Texas Rules of Civil Procedure.

RESPONSE: None

i. Any witness statements described in Rule 192.3(b) of the Texas Rules of Civil Procedure.

RESPONSE: None

Respectfully Submitted

~~ Howard Kirk Gibbs 4360 Western Center Blvd. #205 Fort Worth, Texas 76137

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing Response to Request for Disclosure was delivered to the following parties on this 291h day of May, 2014:

Pentex Foundation Via Email to SmithLaw@Airmail.net c/o Scott Smith Attorney of Record

Ken Gibbs & Candy Walton Via Email to CLee@ChristyLeeLaw.com c/o Christy Lee Attorney of Record

Dated and signed this 291h day of May, 2014.

DEFENDANT'S RESPONSE TO DEFENDANT'S Cause No. CV-14-41 RE~~T FOR DISCLOSURE -Page 3- Pentex Foundation vs. Gibbs '.,

96

NO. CV-14-41665

PENTEX FOUNDATION, § Plaintiff § § v. § § FANNIN COUNTY, TEXAS KENNETH VERN GIBBS, CANDACE § GIBBS WALTON and HOWARD § KIRK GIBBS, Defendants § 3361h JUDICIAL DISTRICT

ORIGINAL PETITION IN INTERVENTION

COMES NOW, Joshua Unger, Trustee of the GBU Friends and Associates

Trust, Intervenor, pursuant to TEX. R. CIV. P 40, and intervenes as the real party in

interest in this suit against Kenneth Vern Gibbs, Candace Gibbs Walton, and

Howard Kirk Gibbs,; and, would show the honorable court as follows: 1

1. Intervenor is the trustee of the GBU Friends and Associates Trust, and

is the recipient of the rights initially assigned to Albert Lynn Barcroft by virtue of

the Contract. 2 All defendants have appeared and answered herein, and may be

served pursuant to TEX. R. CIV. P. 21 a.

2. The subject matter in controversy is within the jurisdictional limits of

this Court. Additionally, venue is proper in Fannin County, pursuant to TEX. CIV.

PRAC. & REM. CODE§ 15.035(a), as the Defendants herein agreed in writing that

As used herein the abbreviations used by Plaintiff in the Original Petition shall be used herein.

Additionally, pursuant to TEX. R. Ctv. P. 58, Intervenor adopts by reference the exhibits attached to the Original Petition.

When the term "Intervenor" is used herein, it is meant to refer to Intervenor and his predecessors in interest.

PETITION IN INTERVENTION .... PAGE I

97

the Contract was performable only in Fannin County, Texas and that any dispute

would be resolved in the courts of Fannin County, Texas.

3. On or about the lOth day ofMay, 2005, the Contract was entered

into between Mr. Barcroft and all three Defendants, whereby the Defendants each

sold to Mr. Barcroft a thirty percent interest in specified estates and related

interests. A true and correct copy of the Contract is attached to the Plaintiffs

Original Petition as Exhibit "A". Intervenor is the present holder of the interest

conveyed to Mr. Barcroft by the Defendants pursuant to the terms of the Contract.

4. Pursuant to the terms of the Contract, a business organization was to

be created to facilitate the terms of the Contract. The Contract additionally

provided, on page 4, that any party could demand a split of the assets out of the

business organization at any time.

5. In the Fall of 2008, the Defendants purportedly created a business

organization known as GWB Family and Friends Trust ("GWB"), a purported

trust, supposedly in compliance with the terms of the Contract to "help facilitate

the terms of the contract". It is questionable whether the GWB was validly

created, but regardless if GWB is, in fact, a trust, it is a revocable trust pursuant to

the terms of the Contract and/or is not binding on Intervenor.

6. On or about September 5, 2008, a Family Settlement Agreement

PETITION IN INTERVENTION .... PAGE 2

98

.'-'.

("FSA") agreement was reached by Intervenor's predecessor in interest and the

Defendants with respect to the estates of Bert Hughes Gibbs and Kathryn

Houseworth Gibbs (Defendants' parents) would be divided. The Contract the

subject of this suit was recognized and confirmed in the FSA, at page 33, section

3.25 (c). The FSA, page 22, section 3.15A, also restated and reconfirmed that

Defendants were solely responsible for any attorney fees; thereby confirming that

provision in the Contract.

7. Pursuant to the terms of the FSA, Defendants were each awarded 25%

of both their father's and mother's estates, totaling 75% of the total of the

combined estates. Each Defendant had previously sold 30% of their share to

Barcroft under the Contract; meaning that Barcroft, or his assigns, had an

unmitigated interest in the combined estates of22.50% (or 30% of75%). 3

Through agreement and instruction from Plaintiff, the estate attorneys assigned

2.46% of Plaintiffs 30%; leaving 20.04% belonging to Barcroft or his assigns

(22.50% less 2.46%). In sum, the Intervenor's interest in said estates is 20.04%.

8. In August, 2013, Intervenor learned that attorney fees that were

agreed would be paid by Defendants had actually been coming out of Intervenor's

share. Unbeknownst to Intervenor, until October of2013, the contingency fee

attorneys were deducting their fees from the total due Pentex Foundation, Ken,

PETITION IN INTERVENTION .... PAGE 3

99

Candy and Howard, then issuing one check to GWB. The result is that Intervenor

has involuntarily incurred in excess of a million dollars in attorney fees that were

due to be paid solely by Defendants. When Intervenor learned of this error, his

predecessor in interest immediately moved under the terms of the Contract to

demand a split of the assets of the business organization. Beverly Miller, the

putative trustee of GWB, determined that the demand was valid, whereupon

she transferred enough property to equal20.04% of the total estate, previously

distributed to GWB [mineral interests], to the GBU Friends and Associates Trust.

9. In response, Kenneth Gibbs and Candace Walton engaged counsel

who contacted the gas companies, with whom Intervenor does business, by letter,

tortiously interfering with the contracts between Intervenor and the various oil

compames.

10. Intervenor has a right to performance under the Contract. Intervenor

seeks judgment that the provisions of the Contract be fully enforced without delay;

and, that the proper gas companies be notified of the action. Intervenor

additionally requests that the Court enter an order requiring Defendants to pay

restitution to Intervenor.

11. In addition, under the terms of the Contract, Intervenor was to receive

30% of all proceeds from any lawsuit involving Defendants. At the time the

PETITION IN INTERVENTION .... PAGE 4

100

"-"'

Contract was agreed to and executed, there was an Abstract of Judgment filed in

Denton County against Defendants in the amount of $1 ,234,205 .64, in favor of Kip

H. Gibbs as NEXT FRIEND FOR Kathryn Houseworth Gibbs. As a result of the

efforts of Intervenor's predecessors in interest, that judgment was retired. It is

therefore proceeds from a lawsuit, and Intervenor is entitled to 30%, equaling

$370,262.70.

12. Intervenor additionally requests that declaratory judgment be entered

under Chapter 37 of the Texas Civil Practice and Remedies Code, declaring the

Contract valid and enforceable under the laws of the State of Texas.

13. As a direct and proximate result, and as intended, the frivolous

contacts compelled the gas companies to discontinue payments of royalties

rightfully due Intervenor, in a sum in excess of the minimum jurisdictional limits

of this Court. Intervenor is being unjustly denied its money and assets all because

of groundless, unproven, and false accusations made on behalf of Kenneth Gibbs

and Candace Walton, both in conversation and in writing.

14. Intervenor would further show that the acts and omissions of

Defendants, Kenneth Gibbs and Candace Walton, complained of herein were

committed knowingly, willfully, intentionally, with actual awareness, and with the

specific and predetermined intention of enriching said Defendants at the expense of

PETITION IN INTERVENTION .... PAGE 5

101

...,. .

Intervenor. In order to punish said Defendants, Kenneth Gibbs and Candace

Walton, for such unconscionable overreaching and to deter such actions and

omissions in the future, Intervenor also seeks recovery from Defendants, Kenneth

Gibbs and Candace Walton, for exemplary damages as provided by Section

41.003(1) of the Texas Civil Practice and Remedies Code.

15. Request is made for all costs and reasonable and necessary attorney's

fees incurred by or on behalf of Intervenor herein, including all fees necessary in

the event of an appeal of this cause to the Court of Appeals and the Supreme Court

of Texas, as the Court deems equitable and just, as provided by Chapters 37 and 38

of the Texas Civil Practice and Remedies Code.

16. Pursuant to Rules 47 and 48, Texas Rules of Civil Procedure and the

rules of pleadings, allegations in this petition are made in the alternative.

17. Plaintiff avers that all conditions precedent have occurred prior to

filing of this suit.

18. Pursuant to Tex. R. Civ. P. 193.7, Intervenor gives notice that he will

use any and all of the documents produced by Defendants in this litigation, and in

response to written discovery at the trial to be held in this case.

19. Intervenor makes demand for trial by jury pursuant to TEx. R. Ctv P.

216.

PETITION IN INTERVENTION .... PAGE 6

102

' '

20. Pursuant to Rule 194 of the Texas Rules of Civil Procedure, each

Defendant is requested to disclose within the later of fifty days of service of this

request, the material described in Rule 194 of the Texas Rules of Civil Procedure.

WHEREFORE, PREMISES CONSIDERED, Intervenor prays that upon a

final hearing of the cause, judgment be entered by this Court for Intervenor and

against the Defendants, jointly and severally, for the following:

A. All actual damages; but, in any case, no less than one million dollars $1 ,000,000.00;

B. Restitution in the exact amount that has been unjustly taken from Intervenor by Defendants and used to pay Defendant's legal fees;

C. Declaratory judgment at the earliest possible time to determine the proper ownership of the mineral interest put in dispute at the oil and gas company level by baseless letters from the Defendants;

D. Specific Performance;

E. Judgment against Defendant's for $370,262.70, together with interest as Intervenor's share of the proceeds from the Abstract of Judgment referenced herein; and

F. Grant any other relief to which Intervenor has shown himself entitled both at law and in equity, whether pled or unpled.

PETITION IN INTERVENTION .... PAGE 7

103

, • I' '

Respectfully submitted,

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

CERTIFICATE OF SERVICE

I do hereby certify that a true and correct copy of the above and foregoing document was served upon Christy L. Lee, Esq., of Law Offices of Christy Lee, P.C., 777 Main Street, Suite 600, Fort Worth, Texas 76102, by certified mail, return receipt requested number 7009 2250 0000 2311 3937, and to Howard Kirk Gibbs, ProSe, at 4360 Western Center Blvd., Suite 205, Ft. h, Texas 76137, email, by on this June 17, 2014. .

PETITION IN INTERVENTION .... PAGE 8

104

CAUSE No. CV-14-41665

PENTEX FOUNDATION )

)

PLAINTIFF, )

)

vs. )

)

KENNETH VERN GIBBS; AND ) CANDACE GIBBS WALTON; AND ) HOWARD KIRK GIBBS, )

)

DEFENDANTS. ) FANNIN COUNTY, TEXAS

MOTION TO STRIKE INTERVENTION, MOTION TO DISMISS WITH PREJUDICE, AND RULE 13 MOTION FOR SANCTIONS OF KENNETH VERN GIBBS AND CANDACE GIBBS WALTON

TO THE HONORABLE JUDGE OF THE COURT:

COME NOW, KENNETH "Ken" GIBBS and CANDACE "Candy" WALTON,

Defendants, by and through their Counsel ofRecord, Law Offices of Christy Lee, P.C., and file

this Motion to Strike Intervention, Motion to Dismiss, and Rule 13 Motion for Sanctions, and

would respectfully show the Court the following:

I. MOTION TO STRIKE INTERVENTION

1. Pursuant to Rule 60 of Texas Rules of Civil Procedure, an applicant's right to

intervene in litigation is "subject to being stricken out by the court for sufficient cause on the

motion of any party." An intervenor bears the burden to show a justiciable interest, legal or

equitable in the lawsuit, while the trial court has broad and sound discretion concerning the

intervention. Mendez v. Brewer, 626 S. W.2d 498, 499 (Tex. 1982). A party may intervene if

the party could have brought the same action, or any part of the action, under the party's own

MOTION TO STRIKE INTERVENTION, MOTION TO DISMISS WITH PREJUDICE, AND RULE 13 MOTION FOR SANCTIONS OF KENNETH VERN GIBBS AND CANDACE GIBBS WALTON CAUSE NO. CV -14-41665 Pentex Foundation vs. Kenneth Gibbs, et al. -1-

105

name. Guaranty Federal Savings Bank. v. Horseshoe Operating Company, 793 S.W.2d 652,

657 (Tex. 1990). It is not an abuse of discretion to strike invention when ( 1) the intervenor fails

to meet the burden of justiciable interest; (2) the intervention complicates the case by an

excessive multiplication of the issues; and (3) the intervention is not essential to protect the

intervenor's interest. !d.

2. Ken and Candy contend that sufficient cause exists in this Matter such that the

Original Petition in Intervention should be stricken.

3. On June 17, 2014, Joshua Unger ("Unger"), Trustee of the GBU Friends and

Associates Trust ("GBU Trust"), filed the Original Petition in Intervention as "the real party in

interest in this suit." Unger's Petition continues the pattern of frivolous pleadings before the

Court as established by PlaintiffPentex Foundation ("Pentex").

4. Ken and Candy maintain that Unger's intervention in this Matter germinated

initially in reaction to Ken and Candy's challenge concerning the authority of Attorney John

Skotnik and Pentex to initiate proceedings against Defendants concerning long-contested assets

original to the Estate of Bert Hughes Gibbs ("the Estate"). 1 The intervention sprouted to

fruition at the moment Ken and Candy followed Pentex's lead in requesting discovery.

5. Prior to the proceedings in this Matter, Ken and Candy repeatedly requested that

Albert Barcroft, of Pentex, provide evidence of its existence as a legal entity and that it

possessed the right to engage in legal transactions within the United States. Albert Barcroft

refused to turn over proof. Albert Barcroft is not only the self-proclaimed "Legal

1 See Motion to Show Authority, Motion for Change of Venue, Original Answer, Affirmative Defenses, Original Counterclaim, and Rule I 3 Motion for Sanctions of Kenneth Vern Gibbs and Candace Gibbs Walton, filed with this Court on April24, 20I4.

MOTION TO STRIKE INTERVENTION, MOTION TO DISMISS WITH PREJUDICE, AND RULE I 3 MOTION FOR SANCTIONS OF KENNETH VERN GIBBS AND CANDACE GIBBS WALTON CAUSE No. CV-14-41665 , Pentex Foundation vs. Kenneth Gibbs, et al. -2-

106

Representative" of Pentex; Albert Barcroft is also the alleged Beneficiary of Pentex Royalty

Trust, affiliate ofPentex Foundation.

6. Once Pentex launched this suit against Defendants, Ken and Candy again

repeatedly requested evidence that Pentex enjoyed the right to proceedings in a court of law in

the United States. On June 13, 2014, Scott Smith ("Smith"), succeeding Counsel for Pentex,

produced a lone document, drafted in Spanish. No English translation - certified or otherwise -

was made available to Ken and Candy.

7. Meanwhile, Pentex demanded discovery from Ken and Candy. When Ken and

Candy asked to delay discovery until the Motion to Show Authority could be ruled upon, as

would be protocol, Pentex insisted that discovery be produced on schedule and in full.

Therefore, Ken and Candy began the arduous - and expensive - process of drafting and

compiling discovery documents.

8. Since Pentex was adamant that the discovery process could not be temporarily

suspended, Ken and Candy asked to schedule depositions for Albert Barcroft and the remainder

of the representatives of Pentex, residents of Guatemala and Panama, respectively. Not

surprisingly, Pentex did not respond.

9. However, on June 17, 2014, almost immediately following the request for

depositions, Smith, this time acting as Counsel for GBU Trust, filed the Original Petition in

Intervention, arguing that GBU Trust is in fact the "real party in interest in this suit." Just as he

is with Pentex, Albert Barcroft is a Beneficiary of GBU Trust.

10. The substance of GBU Trust's Petition was that it was GBU Trust, not Pentex,

entitled to substantial proceeds arising from various documents supposedly assigning Albert

MOTION TO STRIKE INTERVENTION, MOTION TO DISMISS WITH PREJUDICE, AND RULE 13 MOTION FOR SANCTIONS OF KENNETH VERN GIBBS AND CANDACE GIBBS WALTON CAUSE NO. CV- 14-41665 Pentex Foundation vs. Kenneth Gibbs, et al. -3-

107

Barcroft's interest in the Estate's to other parties. A similar claim formed the crux of Pentex's

original complaint, which argued that Pentex should receive Albert Barcroft's portion of the

Estate.

11. The common denominator in both arguments? Albert Barcroft, the Creator and

Beneficiary of both Pentex and GBU Trust, and the assigner of interest of the assets in dispute.

In other words, Albert Barcroft is both Pentex and GBU Trust. Should he not know the identity

of the true party to the litigation?

12. GBU Trust's Petition was filed as a diversionary tactic. It contained no

supporting evidence of the legitimacy of GBU Trust, or of its claim that Albert Barcroft

assigned to GBU Trust, rather than to Pentex, his interest in the Estate.

13. GBU Trust's Petition failed to prove GBU Trust's interest in the suit, nor did it

show evidence of how both Pentex and GBU Trust could concurrently demand and reasonably

be entitled to the exact same proceeds. However, the fact that Smith knowingly and

deliberately executed GBU Trust's filing while continuing to represent Pentex points to

collusion between the parties, suggesting that if one party succeeds in procuring the contested

assets, the other will enjoy the reward as well. In other words, as Beneficiary to both Pentex

and GBU Trust, Albert Barcroft could potentially enjoy double wins.

14. Alternatively, as both Plaintiff and Intervenor, if Albert Barcroft did not succeed

as Pentex against Ken and Candy, Albert Barcroft might have another shot at success as GBU

Trust.

15. Smith's simultaneous representation of two parties making the same claim to the

same assets gratuitously and overly complicates the proceedings through a multiplication of

MOTION TO STRIKE INTERVENTION, MOTION TO DISMISS WITH PREJUDICE, AND RULE 13 MOTION FOR SANCTIONS OF KENNETH VERN GIBBS AND CANDACE GIBBS WALTON Pentex Foundation vs. Kenneth Gibbs, et al.

108

issues which would otherwise not be necessary to address. Not only must Pentex establish its

authority regarding proceedings in the Matter, but GBU Trust must also clarify its position

relative to its claims. Since, as Beneficiary of both Pentex and GBU Trust, Albert Barcroft is the

common denominator, and since the claims are the same, the intervention is unwarranted,

cumbersome, and unreasonable.

16. Additionally, GBU Trust's Petition focuses almost solely on assets at the control

of the Estate. As GBU Trust is fully aware, the disputed assets are currently being addressed in

Tarrant County Probate Court No. 2. Cause No. 2005-0000126-2-D. Intervention in the suit

before this Court is a frivolous attempt to avoid transfer of the Cause, as Ken and Candy

requested of the Court.

17. GBU Trust's Petition fails the three-prong test for justifiable intervention in this

Matter. GBU Trust's intervention would do nothing more than afford Albert Barcroft the

opportunity to effectively pursue Ken and Candy twice for the same assets, once through Pentex

and once through GBU Trust. Since Pentex's suit already offers protection of Albert Barcroft's

interest in the suit, GBU Trust's entry into the Matter is superfluous and is not necessary to

protect Albert Barcroft's interest.

18. Subject to the Motion to Strike, and without waiving any other defenses Ken and

Candy might later present, Ken and Candy assert a general denial to GBU Trust's allegations, as

authorized by Rule 92 of the Texas Rules of Civil Procedure. GBU Trust's Petition in

Intervention should be stricken.

II. DEFENDANTS' MOTION TO DISMISS WITH PREJUDICE

19. Ken and Candy move this Court to dismiss this Matter with prejudice. As Ken

MOTION TO STRIKE INTERVENTION, MOTION TO DISMISS WITH PREJUDICE, AND RULE 13 MOTION FOR SANCTIONS OF KENNETH VERN GIBBS AND CANDACE GIBBS WALTON Pentex Foundation vs. Kenneth Gibbs, et al.

109

and Candy argued in their Answer to the suit, Pentex filed the case frivolously, solely for the

purposes of harassment.

20. Pentex's suit was filed without authority; Pentex acknowledged that it has no

standing regarding the Matter. The same Counsel representing Pentex filed GBU Trust's

Petition with this Court, and therefore, Pentex was fully cognizant of GBU Trust's Petition. In

the Petition, GBU Trust stated that it is the "real party in interest in this suit." As was

established in the Motion to Strike Invention, Albert Barcroft is both Pentex and GBU Trust.

21. Despite its certain awareness of GBU Trust status as "the real party in interest"

in the Matter, even upon request, Pentex declined to ask the Court to remove Pentex from this

lawsuit, to dismiss the case against Ken and Candy, or to agree to streamline the case by

transferring it to another court. Pentex's failure to withdraw its complaint, coupled with

Pentex' s refusal to request the Court to dismiss or to address the action in a more economic

manner, substantiates Ken and Candy's interpretation of the motive for the suit.

22. In light of its knowledge of the "real party in interest" in this case, Pentex's

adverse actions continue to constitute a serious disregard for the Court's time and have resulted

in growing legal costs for Ken and Candy unnecessarily and exponentially. The case against

Ken and Candy should be dismissed with prejudice, as it is likely to achieve little more than

increasing Ken and Candy's legal fees while heavily absorbing the Court's resources. If GBU

Trust wishes to pursue the matter, it should file its own case through the appropriate court, as it

is the "real party" in the lawsuit.

III. RULE 13 MOTION FOR SANCTIONS

23. Pursuant to Rule 13 ofthe Texas Rules of Civil Procedure, Ken and Candy move

MOTION TO STRIKE INTERVENTION, MOTION TO DISMISS WITH PREJUDICE, AND RULE 13 MOTION FOR SANCTIONS OF KENNETH VERN GIBBS AND CANDACE GIBBS WALTON Pentex Foundation vs. Kenneth Gibbs, et al.

110

this Court for Sanctions against Attorney John Skotnik, Attorney Scott Smith, Plaintiff Pentex

Foundation, and Intervenor GBU Friends and Associates Trust, for filing and perpetuating a

frivolous suit designed solely to badger Ken and Candy.

24. The Original Petition seeking relief was signed in violation of Rule 13, as a

reasonable inquiry by John Skotnik and his client would have shown that the allegations are

false, trivial, and meant solely for the purpose of harassment. Even a cursory review of the facts,

including the ill-gotten transfers of assets from GWB Family and Friends Trust, would have

revealed that Pentex has no standing to sue Ken and Candy, as Pentex had no ownership of the

alleged assets.

25. Following Skotnik's withdrawal as Counsel to Pentex due to a conflict of

interest, Scott Smith assumed the role. Even had Smith initially suffered no qualms about

representing a client whose standing was in doubt, Smith should have experienced at least a few

pangs of conscience connected to his signing on as Counsel for GBU Trust. Conflict of interest

aside, the moment he conjured up the title of the "real party of interest" for GBU Trust, Smith

should reasonably have moved to extricate Pentex from the convoluted matter.

26. As of June 18, 2014, Smith was still resolute that both Pentex and GBU Trust

will remain in the suit.

27. Despite its certain awareness that GBU Trust has unilaterally declared itself the

"party of interest," Pentex has made no effort to request the Court dismiss the suit. Currently,

neither Pentex nor GBU Trust has proven its ground for attempting redress for any bad acts

supposedly committed by either Ken or Candy.

MOTION TO STRIKE INTERVENTION, MOTION TO DISMISS WITH PREJUDICE, AND RULE 13 MOTION FOR SANCTIONS OF KENNETH VERN GIBBS AND CANDACE GIBBS WALTON Pentex Foundation vs. Kenneth Gibbs, et al.

28. Therefore, pursuant to Rule 215-2(b) of the Texas Rules of Civil Procedure, Ken

and Candy request that all Sanctions available, including attorney fees, should be imposed on

John Skotnik, Scott Smith, Pentex, and GBU Trust.

VII. PRAYER FOR RELIEF

Based on the foregoing, Ken and Candy pray that this Court:

( 1) Dismiss this suit in its entirety with prejudice;

(2) Award Ken and Candy costs and attorney fees;

(3) Enter all other Orders and further relief, legal and equitable, that the Court deems appropriate in this matter, including appropriate sanctions for the violation of Rule 13; and

(4) For such further and additional relief as justice may require.

Respectfully submitted, LAW OFFICES OF CHRISTY LEE, P.C.

/ .I

\.:;~~/ ./,

C./-~-

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

ATTORNEY FOR KENNETH GIBBS AND CANDACE WALTON

MOTION TO STRIKE INTERVENTION, MOTION TO DISMISS WITH PREJUDICE, AND RULE 13 MOTION FOR SANCTIONS OF KENNETH VERN GIBBS AND CANDACE GIBBS WALTON CAUSE No. CV -14-41 Pentex Foundation vs. Kenneth Gibbs, et al. Ill

112

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing document was delivered, pursuant to Texas Rules of Civil Procedure, to the following parties on this 18th day of June, 2014:

Pentex Foundation and Via mail and email GBU Family and Friends Trust c/o Scott Smith P.O. Box 354 Sherman, TX 75091-0354

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

_,I .

!..,. .·

\.~ Christy L. Lee

MOTION TO STRIKE INTERVENTION, MOTION TO DISMISS WITH PREJUDICE, AND RULE 13 MOTION FOR SANCTIONS OF KENNETH VERN GIBBS AND CANDACE GIBBS WALTON CAUSE NO. CV-14-4 Pentex Foundation vs. Kenneth Gibbs, et al.

113

CAUSE NO. CV-14-41665

PENTEX FOUNDATION )

)

PLAINTIFF, )

)

vs. )

)

KENNETH VERN GIBBS; AND ) CANDACE GIBBS WALTON; AND ) HOWARD KIRK GIBBS, )

)

DEFENDANTS. ) FANNIN COUNTY, TEXAS

NOTICE OF HEARING

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

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

concerning Motion to Show Authority, Motion for Change of Venue, Motion to Strike

Intervention, Motion to Dismiss with Prejudice, and Rule 13 Motion for Sanctions of Kenneth

Vern Gibbs and Candace Gibbs Walton. The hearing has been set for September 30,2014, from

8:30AM to 12 PM, in 336th Judicial District Court of Fannin County, Texas.

Respectfully submitted,

LAW OFFICES OF CHRISTY LEE, P.C.

/• ,/ ,.-" 1 . ,. . .......··"" L .~ -----t--=-- Christy L Lee Texas State Bar No. 24052302 777 Main Street, Ste. 600 Fort Worth, Texas 76 I 02 (817) 504-6075 (800) 437-7901 -Fax clee@christyleelaw.com

NOTICE OF HEARING -I-

114

CERTIFICATE OF SERVICE

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

Via:

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

Pentex Foundation and Mail GBU Family and Friends Trust Email: smithlaw@aim1ail.net c/o Scott Smith, Attorney 120 South Crockett Street Sherman, TX 75091-0354

,, I IJ ./ //t. . ·, \. . /\.--{...<.__ Christy L. Lee

NOTICE OF HEARING

L-\11 OrVJCESOF

Cll~JS'J'Y L. L~;~:

Attorney

225 E. Fl~EWEED LA'\~;. STJ<:. 200 ,\i\CIIO~M>E. AIASI\A 9950:l 1\-L\11\: 907.3:39.9931 F'~\: 800.437.7901

777 M~ll\ S'J:. STK 600 Foli'r\VoJnll. TJ<:X~S 76102 PliO'\~;;817.504.6075 FAX.: 800.437.7901

clee@christ.yleelaw.com June 19,2014 www.(·hrist.yl(~ela \\'.C'Oill

Clerk of the Court 101 E Sam Rayburn Drive, Suite 200 Bonham, TX 75418

Re: Cause No. CV-14-41665 Pentex Foundation vs. Kenneth Vern Gibbs, et al.

To Whom It May Concern:

Enclosed is a Notice ofHearing, concerning Cause No. CV-14-41665.

Please file the original document with the Court, and return the file-marked copy to the firm in the enclosed self-addressed, stamped mailer.

If you have any questions, please contact our office. Thank you for your assistance with this matter.

Very truly yours, LAW OFFICES OF CHRISTY LEE, P.C.

c7!cJ--1&/~ Laura Hogins, Paralegal

Enclosures

116

CAUSE No. CV -14-41665

PENTEX FOUNDATION, )

PLAINTIFF, )

)

vs. )

)

KENNETH VERN GIBBS; AND ) CANDACE Gll313.S WALTON; AND ) TiOWARD KIRK GIBBS, )

DEFENDANTS. ) FANNIN COUNTY, TEXAS

HULE U AGREEMENT FOR METHOD OF SERVICE

TO THE HONORABLE JUDGE OF COURT:

On June 20, 2014, this Agreement was entered into by Kenneth Vern Gibbs and Candace

Walton, Defendants; Howard Kirk Gibbs, Defendant, pro se; and Pentex Foundation, Plaintiff;

and GBU Friends and Associates Tntst, 1ntervenor; by and through their respective attorneys and

Howard Kirk Gibbs; and the Par! ies together hereby submit the following Rule II Agreemenllo

the Court regarding the referenced case.

In the effort to conserve resources, the Parties agree to emailed service of all documents

pertaining to the Matter and to acknowledge receipt of the service within one (1) business day by

email or facsimile. If no acknowledgement of the service is forthcoming from the receiving Party

within one (1) business day, service shall be effected in an alternative manner, pursuant to R.ule

2! of the Texas Rules of Civil Procedure. However, service shall be deemed completed tit the

time the email is sent, except on holidays or weekends, at which time service shall be deemed

completed on ihe next business day.

RULE I I AGREEMENT FOR METHOD OF SERVlCE CAUSE NO. C\1714,4 I 665 Peule.r Foundation vs. Gibbs et af. .' - 1-

117

Respectfully submitted, LAW OFFICES OF CHRISTY LEE, PC.

/) / / .· \{.~ ....

By: L-.. ~, ---------------

Date . T --~----------·· Christy L. Lee Texas State Bar No. 24052302 777 Main Street, Ste. 600 Fort Worth, Texas 761 02 (R 17) 504-6075 Office UWO) 437-7901 Fax clee@Jchristyiccla w .com

A'ITORJ'\IEY FOR KENNETH GIBBS AND CANDACE 'N ALTON

__sCOTT SMI:D~- · ---- ~"-~ ;-----_::-;S':--:r----~ 8)-;.{ccc.f---· -- J.

. Sco· -imth...:::;;,...--

Texas State Bar No. 18688900 120 South Crockett Street P.O. Box 354 Sherman, Texas 75418 (903) 868~8686 Office (903) 870-1446 Fax smi!hlaw@airmail.net

ATfORNE'J' FOf~ PLAINTif-F AND INTERVENOR

./ .../' /' /

__ f/f~'!._:..:'<'L:M;'/ /~¥,.,/·{.-" :<._ Date Howard Kirk Gibbs, Pro St:

4360 Western Center Boulevard, Suile 205 Fmi Worth, Texas 76 I 37 (817) 233-4423 hkgibbs@gmai J.com

RULE 11 AGREEi\lENT FOR 1\·JETHOD Of SERVICE CAUSE NO. C:V-l<i-'11665 Pen/ex Foundation vs. Gibbs eta/. -2-

118

,..., , ......

,...,;,...

<'<./:,.A '/ ·r.-;,/, • r· ,,.._

1. • J - i.- /;?

.I/'. ?_.

CAUSE No. CV-14-41665 ./) .. r' ·.

'-( --;-., • ')

(' .

~.~ '""

PENTEX fOUNDATION, ) IN TH~Trffc:T COURT PLAINTIFF, ) (//')-

)

vs. ) JJ6Tif JUDICIAL D!STHICT )

KENNETH VERN GIBBS; AND ) CANDACE GIBBS WAI.TON; AND ) HOWARD KmK GIBBS, )

DEFENDANTS. ) FANNIN COUNTY, TEXAS

RULE 11 AGREEMENT FOR DUE DATE FOR ADMISSIONS

TO THE HONORABLE JUDGE OF COURT:

On June 20,2014, this Agreement was entered into by Kenneth Vern Gibbs and Candace

Wallon, Defendants; Pcntcx Foundation, PlaintiiT; and GBU Friends and Associates Trust,

Intervenor; by and through their respective at!orncys. The Parties together submit to the Court

the following Rule 1I Agreement regarding the referenced case.

The Parties agree that Defendants shall respond to the Request for Admissions no later

!hun Friday, June 27, 2014.

Respectfully submitted, LAW OFFICES OF CHRISTY LEE, P. C.

Date t(P/7u/lj___ -·-~ {_:.

/J:~---·--~--~-·--p J!& Christy L. Lee Texas Stale Bar No. 24052302 777 Main Street, Stc. 600 Fort Worlh, Texas 76102 (81 7) 504-6075 Office (800) 437-7901 Fax cl~~@chris!yl_cg_taw.com

A'M'ORNEY FOR KENNETH GII3BS AND CANDACE WALTON RULE II AGREEMENT FOR DUE DATE FOR ADMISSIONS CAU~H NO. CV-14-41 665 l'entex Foundation l'S. Gibbs el a/. -1-

119

(olz;3\U( Date c._ott Texas State Bar No. 18688900 120 South Crockett Street P.O. Box 354 Shennan,Texas 75418 (903) 868-8686 Office (903) 870-1446 Fax smithlaw@airmail.net

ATIORNEY FOR PLAINTIFF

RULE II AGREEMENT FOR DUE DATE FOR ADMISSIONS CAUSE NO. CV-14-41665 Pentex Foundation vs. Gibbs et a/. -2-

120

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CONSTRUCTIVE NOTICE BY AFFIDAVIT rn -o c:

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(Privilte Ideodfi~;ation for u~e in the Public Forum) -<

I, Daniel Ray Unger (a.k.a. "Danny"), being a Free White Christian Man, and the posterity by birthrightfinheritance of the Sovereign People who Created the original Constitution for the Commonwealth of Pennsylvania and the Articles of Confederation (Agreed to by Congress November 15, 1777 and ratified and in force, March 1, 1781 ), creates this Constructive Notice by Affidavit for private Identification use in the public forum and as Evidence of my Sovereign Authority Status in order to claim and to declare and give as evidence my status and properly identify myself when law requires; and, in order to prevent any ignorant or unintentional transgressions of my rights to life, liberty, property, and pursuit of happiness.

The purpose ofthis affidavit is give public notice of positive identification to all who inquire as to who I am. It is entered into the public record as a means of establishing my lawful identification to all who may inquire. I stipulate that it may be used as positive identification of me for all matters. I was born as one of the sovereign American people by Birthright in the month currently known as October, 1952.

Attached in the upper left hand comer ofthis instrument is an exact likeness of me. I stipulate that it can be used to clarify that I am the man I represent myself to be for all purposes.

FURTHER, I SA YETH NOT:

Right Thumb Print:

BEFORE ME, on this day did appear Daniel Ray Unger in his proper person, known to me to be the man who's name is subscribed to the foregoing instrument and whose likeness is affixed in the upper left hand corner above; and he did declare under penalty of pe!jury that the foregoing is true and correct.

And after examining the above likeness, I affirm that it is an accurate likeness of him.

GIVEN UNDER MY HAND AND SEAL on this_!!/_ day of July, 2014.

121

NO. CV-14-41665

PENTEX FOUNDATION, § IN Plaintiff § § v. § § FANNIN COUNTY, TEXAS KENNETH VERN GIBBS, CANDACE § GIBBS WALTON and HOWARD § KIRK GIBBS, Defendants § 336 1h JUDICIAL DISTRICT

PLAINTIFF'S MOTION TO COMPEL

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, Pentex Foundation, Plaintiff, files this his Motion to Compel Kenneth

Gibbs and Candace Gibbs Walton, Defendants\ to answer discovery, and would show the

Court as follows:

1. Plaintiff served and Defendants timely responded to Requests for Admissions. 2

The Defendants did, however, levy substantial and unwarranted objections to almost every

request. For convenience, the objections can be grouped:

A. Objections Relatint: to "Le~:al Interpretation."

Inresponsetorequestsnumber6, 7, 15, 16, 17, 18, 19,21,22,23,24,25,26,27,27,

31, 32, 33, 34, 52, 53, 54, 55, 56, 57, 58, 65, 66, 83 and 84, Defendants have variously

objected that these requests call for a legal interpretation. The request for admissions rule

These are two of the three defendants in this case. For convenience they shall be referred to as "Defendants."

2

A true and correct copy of the Defendants' Response is attached hereto as Plaintiffs Exhibit "A". PLAINTIFF'S MOTION TO COMPEL .. PAGE 1

122

expressly allows requests for a party to admit the truth of "statements of opinion or of fact

or of the application oflaw to fact". Tex. R. Civ. P. 198.1. That is what these requests do.

Parenthetically, some of these are taken almost verbatim from the documents that Defendants

have signed. The objections should be overruled.

B. Objections Relating to the Scope of Discovery.

In response to requests number 60,60 (2d one), 62, 63, 66, 67, 70, 71, 72, 73,73 (2d

one), 76, 77, 78, 79, 80, 81, and 82, Defendants have repeatedly objected as "not relevant or

likely to lead to the discovery of admissible evidence." Obviously, "relevance" is not the

standard for discovery, but in candor, these admissions do seek relevant evidence, the

narrower standard than is required to obtain discovery. Nevertheless, this portion of the

objection should be overruled. With respect to the second part of these objections, discovery

may be aimed at information not admissible at trial, as long as the information appears

reasonably calculated to lead to the discovery of admissible evidence. Tex. R. Civ. P.

192.3(a). Clearly, these requests relate to the parties' relationships and the handling of the

proceeds from the various entities, which are at issue in this suit. The second part of the

objections should be overruled.

C. Objections Claiming Harrassment.

In response to requests 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 79, 80, and 81,

Defendants claim the requests are submitted for harassment. We roundly disagree. For

example, requests 68 and 69 are the core issue in this case- why were attorney's fees

PLAINTIFF'S MOTION TO COMPEL ... PAGE 2

123

incurred by Defendants deducted from the interests of Plaintiff and its assigns? Further, if

Defendant Kenneth Gibbs is self dealing with respect to the home place, in violation of his

written representations, Plaintiff is entitled to discover it. These objections should be

overruled.

2. As a result of the failure of Defendants to withdraw their objections, it was

necessary for Plaintiff to engage and pay for counsel to prepare and submit this motion.

Defendants should be assessed the reasonable and necessary costs and attorneys' fees for so

doing.

CERTIFICATE OF CONFERENCE

On the undersigned conferred with the attorney of record for Defendants on . No

resolution of this matter seems apparent, and it is presented the Court for ruling.

WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that Defendants be

ordered to answer the discovery, and for such other and further relief to which Plaintiff may

be entitled.

Respect. U;x)submitted,

I

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

PLAINTIFF'S MOTION TO COMPEL ... PAGE 3

124

.. ---------------------------

FIAT

The above and foregoing Motion shall be heard by the Court at <a- 3U JL.m. on the 30

CERTIFICATE OF SERVICE

I do hereby certifY that a true and correct copy of the above and foregoing document was served, by email pursuant to agreement compliant with TEX. R.CIV. P. 11, upon Christy L. Lee, Esq., of Law Offices of Christy Lee, P.C., 777 Main Street, Suite 600, Fort Worth, Texas 76102, and to Howard Kirk Gibbs, Pro Se, at 4360 Western Center Blvd., Suite 205, F W rth, Te as 76137, on this July 17, 2014.

-- )

PLAINTIFF'S MOTION TO COMPEL ... PAGE 4

Page 1 of 1

Scott Smith

From: "Scott Smith" <smithlaw@airmail.net> To: "Christy Lee" <clee@christyleelaw.com>; "Howard Gibbs" <hkgibbs@gmail.com> Sent: Thursday, July 17, 201411:55AM Attach: 14-7-17 Motion to Compel.pdf Subject: Pentex v. Gibbs-- CV-14-41665 Attached is Plaintiffs Motion to Compel.

Regards, Scott

Scott Smith Attorney and Counselor At Law 120 South Crockett Street P.O. Box 354 Sherman, Texas 75091-0354 Facsimile 903.870.1446 Telephone 903.868.8686

125 7/1

126

....I --~PLAI~NTI!!FP!!!S--

~ EXHIBIT ~ A

CAUSE NO. CV -14-41665

PENTEX FOUNDATION ) lN THE DISTRICT COURT PLAINTIFF, )

)

vs. ) 336m JUDICIAL DISTRICT )

KENNETH VERN GIBBS; AND ) CANDACE GIBBS WALTON; AND ) HOWARD KIRK GIBBS, )

DEFENDANTS. ) FANNIN COUNTY, TEXAS

KENNETH GIBBS AND CANDACE WALTON'S OBJECTIONS AND RESPONSES TO PENTEX FOUNDATION'S FIRST SET OF ADMISSIONS

TO: PENTEX FOUNDATION, Plaintiff, by and through its attorney of record, Scott Smith, 120 South Crockett Road, Shem1an, Texas 75091-0354; email: smithlaw@airmail.net:

COME NOW, KENNETH GIBBS and CANDACE WALTON, Defendants, and serve

their Objections and Responses to Plaintiff Pentex Foundation's First Set of Admissions,

pursuant to Rule 198 of the Texas Rules of Civil Procedure, as follows:

PRELIMINARY STATEMENTS

1. These responses and objections reflect the current state of Defendants'

investigation concerning the discovery request that Plaintiff has propounded. Defendants are

still in the process of investigating the facts and attempting to conduct depositions relating to this

action. To date, Plaintiff and Intervenor have refused to set any deposition dates. Accordingly,

Defendants reserve the right to supplement these responses and objections with subsequently

discovered infommtion. Furthermore, these responses and objections are given without

prejudice to the right of Defendants to use or to rely upon at any time subsequent to discovered

information or documents.

KENNETII GIBBS AND CANDACE WAtTON'S OBJECTIONS AND RESPONSES TO PENTEX FOUNDATION'S FIRST SET OF ADMISSIONS CAUSE NO. CV-14-41665 Pentex Foundation vs. Kenneth Vem Gibbs. eta/. -1-

127

2. Defendants produce the Admissions subject to their objection that no discovery is

due until Plaintiff's authority regarding this matter is determined. Defendants object to the use

of these Admissions pending settlement of the issue of Plaintiff's authority.

Respectfully submitted, LAW OFFICES OF CHRISTY LEE, P.C.

ATTORNEY FOR KENNETH GIBBS AND CANDACE WALTON

KENNETH GIBBS AND CANDACE WALTON'S OBJECTIONS AND RESI'ONSF.S TO PBNTI:X FOUNl>ATION'S FIRST Sur 01' ADMISSIONS CAUSE NO. CY-14-41665 ?entex Foundation vs. Kenneth Vern Gibbs, eta!. -2-

128

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing document was delivered, pursuant to Texas Rules of Civil Procedure, to the following party on this 27th day of June, 2014:

Pentex Foundation and Via email GBU Family and Friends Trust do Scott Smith P.O. Box 354 Sherman, TX 75091-0354

Howard Kirk Gibbs Via email 4360 Western Center Boulevard No. 205 Fort Worth, TX 76137

Christy L. Lee

KENNETII GI!1BS AND CANDACE WALTON'S OBJECTIONS AND RESI'ONSES TO PENTEX FOUNDATION'S FIRST SET OF ADMISSIONS CAUSE NO. CV -14-41665 Pente.> Foundationt•s. Kenneth Vern Gihhs. eta!. -3-

129

EXHIBIT '1A"-FactstobeAdmitted

1. The Contract was signed by Candace, Ken, Howard and Barcroft on May I 0, 2005.

Admit.

2. Candace received and accepted consideration either directly from, or as a result of, the Contract.

Object, as this Request is vague and ambiguous as to consideration in question and calls for legal interpretation of the validity of the Contract. Cannot admit or deny.

3. Ken received and accepted consideration either directly from, or as a result of, the Contract.

Object, as this Request is vague and ambiguous as to consideration in question and calls for legal interpretation of the validity of the Contract. Cannot admit or deny.

4. Prior to filing the Answer, Candace had never challenged the validity of the Contract.

Deny.

5. Prior to filing the Answer, Ken had never challenged the validity of the Contract.

Deny.

6. Pursuant to the Contract, Candace sold 30% of all land and other property that came to her through her inheritance fTOm the Estates to Barcroft for the consideration provided therein.

Object, as Request calls for legal interpretation. Subject to that objection, admit.

7. Pursuant to the Contract, Ken sold 30% of all land and other property that came to his through her inheritance from the Estates to Barcroft for the consideration provided therein.

Object, as Request calls for legal interpretation. Subject to that objection, admit, under the presumption that the stated "her" in fact refers to "Ken's inheritance."

8. Barcroft has rendered, and Candace received or benefitted from, the consideration due Candace from Barcroft under the tenns of the Contract.

KENNETII GIBBS AND CANDACE WALTON'S OBJECTIONS AND RESPONSES TO PENTf:X FOUNDATION'S FIRST SET OF ADMISSIONS Pentex Foundation I'S. Kenneth Vern Gibbs, eta!.

130

Deny.

9. Barcroft has rendered, and Ken received or benefitted from, the consideration due Ken from Barcroft under the terms of the Contract.

Deny.

I 0. Pursuant to the terms of the Contract, Barcroft was required to furnish a licensed attorney to pursue the collection of the Estates.

Admit.

11. Barcroft did furnish a licensed attorney to pursue the collection of the Estates.

Admit in part; deny in part. Barcroft stated that he drafted all related legal documents and provided that he had a Jaw degree and could legally draft such documents. It is unknown which, if any, attorney pursued collections from the Estates.

12. Barcroft himself or someone on his behalf paid the entire fee of the licensed attorney engaged to pursue the collection ofthe Estates.

Object, as Request calls for information beyond the scope of our knowledge. Cannot admit or deny.

13. Barcroft has not breached the Contract.

Deny. Ifthe Contract is legal, Barcroft most certainly breached it.

14. Pentex Foundation has not breached the Contract.

Deny. If the Contract is legal, and if Pentex Foundation was legally assigned the interest as Pentex alleges, Pentex most certainly breached the Contract.

15. Candace signed the Contract under oath.

Object, as this Request calls for legal interpretation of the validity of the Contract. Subject to that objection, admit.

16. Ken signed the Contract under oath.

Object, as this Request calls for legal interpretation of the validity of the Contract. Subject to that objection, admit.

KENNETH GIBBS AND CANDACE WALTON'S OBJECTIONS AND RESPONSES TO PENTEX FOUNDATION'S FIRST SET OF ADMISSIONS CAUSE No. CV-14-41665 Pente.x Foundation vs. Kenneth Vern Gihhs, eta!. -5-

131

17. Candace signed the Contract before a notary public.

Object, as this Request calls for legal interpretation of the validity of the Contract. Subject to this objection, admit.

18. Ken signed the Contract before a notary public.

Object, as this Request calls for legal interpretation of the validity of the Contract. Subject to this objection, admit.

19. Pursuant to the Contract, any additional attorneys hired by Candace, Howard or Ken would be paid for solely by Candace, Ken and/or Howard.

Object, as Request calls for legal interpretation of the validity of the Contract. Subject to that objection, admit in part; deny in part. If Candace, Ken, or Howard wanted to pursue collection actions, then fees would be paid by each individual personally.

20. The Contract is valid and enforceable.

Deny.

21. Pursuant to the Contract, Candace agreed that should she break the terms of the Contract in any fashion, or attempt to render the Contract invalid in any way, which would require legal action to correct or enforce, that should Candace not prevail, she would pay all legal expenses of any type for herself, and for the prevailing party.

Object, as this Request calls for legal interpretation of the validity of the Contract. Subject to that objection, admit.

22. Pursuant to the Contract, Ken agreed that should he break the terms of the Contract in any fashion, or attempt to render the Contract invalid in any way, which would require legal action to correct or enforce, that should Ken not prevail, he would pay all legal expenses of any type for himself, and for the prevailing party.

Object, as this Request calls for legal interpretation of the validity of the Contract. Subjection to that objection, admit.

23. Pursuant to the Contract, Candace agreed that any dispute(s) concerning the Contract would be resolved in the courts ofFannin County, Texas.

Object, as this Request calls for legal interpretation of the validity of the Contract.

KENNETII GIBBS AND CANDACE WALTON'S OBJECTIONS AND RESPONSES TO PENTEX FOUNDATION'S FIRST SET OF ADMISSIONS CAUSENO. CV-14-41665 Pentex Foundation vs. Kenneth Vem Gibbs, et at. -6-

132

Subject to that objection, admit in part; deny in part, as the Contract is vague and ambiguous as to disputes in question; also, disputes about Estate assets must be addressed in Tarrant County.

24. Pursuant to the Contract, Ken agreed that any dispute(s) concerning the Contract would be resolved in the courts of Fannin County, Texas.

Object, as this Request calls for legal interpretation of the validity of the Contract. Subject to that objection, admit in part, deny in part, as the Contract is vague and ambiguous as to disputes in question; also, disputes about Estate assets must be addressed in Tarrant County.

25. Pursuant to the Contract, Candace agreed that the Contract was written with the intent to comply with the laws of the State of Texas; and, any provision found by a court of competent jurisdiction to be in non-compliance would be automatically amended to comply with said laws in such a manner as to keep the original intent of the provision as closely in place as possible.

Object, as this Request calls for legal interpretation of the validity of the Contracl. Subject to that objection, admit.

26. Pursuant to the Contract, Ken agreed that the Contract was written with the intent to comply with the laws ofthe State of Texas; and, any provision found by a court of competent jurisdiction to be in non-compfiance would be automatically amended to comply with said taws in such a manner as to keep the original intent of the provision as closely in place as possible.

Object, as this Request calls for legal interpretation of the validity of the Contract. Subject to that objection, admit.

27. The Contract provides that its terms will be binding on heirs and assigns of the parties to the Contract.

Object, as this Request calls for legal interpretation of the validity of the Contract. Subject to that objection, admit.

28. Pursuant to the tenns of the Contract, all parties agreed that all agreements between the parties were contained in writing in the Contract, and that no verbal agreements would be deemed valid unless contained in writing in the Contract.

Object, as this Request calls for legal interpretation of the validity of the Contract.

KENNETH GIBBS AND CANDACE WALTON'S OllJECTIONS AND RESPONSES TO Pf\NTEX fOUNDATION'S FIRST SET Of' ADMISSIONS CAUSE NO. CV -14-41665 Pellfex Foundation vs. Kenneth Vern Gihhs, era!. -7-

133

Subject to that objection, admit.

29. Pursuant to the tem1s of the Contract, all parties that all amendments to the Contract must be in writing, and signed by all parties to the Contract before a notary public.

Object, as Request is rendered incomplete. Cannot admit or deny.

30. The only document subsequent to the Contract that was signed by all four parties to the Contract before a notary public is the Family Settlement Agreement.

Admit.

31. Pursuant to the tem1s of the Contract, a business organization was to be formed and the only function of said business organization was to facilitate the agreement in the Contract.

Object, as Request calls for legal interpretation. Subject to that objection, admit.

32. Pursuant to the terms of the Contract, it was agreed that Barcroft would have a 50% vote in all decisions made with regards to the administration and management of the business organization formed pursuant to the terms ofthe Contract.

Object, as Request calls for legal interpretation. Subject to that objection, deny. Barcroft had a 50% vote, but not regarding the management ofGWB Trust.

33. Pursuant to the terms of the Contract, it was agreed that any party could demand a split of the assets of the business organization at any time.

Object, as Request calls for legal interpretation of the validity of the Contract. Subject to that objection, admit.

34. The business organization created pursuant to the terms of the Contract is the GWB Trust.

Object, as Request calls for legal interpretation of the validity of the Contract. Subject to that objection, admit.

35. Pentex is the assignee ofthe rights of Barcroft under the Contract.

Object, as Request calls for information beyond the scope or our knowledge.

KENNETH GIBBS AND CANDACE WALTON'S OBJECTIONS AND RESPONSES TO PENTEX FOUNDATION'S FIRST SET OF ADMISSIONS CAUSE NO. CV-14-41665 Pentex Foundation vs. Kennerh Vern Gihhs, et al. -8-

134

36. Pentex has exercised a 50% vote on decisions requiring a vote in the GWB Trust.

Deny. Barcroft has always exercised a 50% vote.

37. The GWB Trust was formed in November of 2008.

Admit.

38. Candace was aware, at the point in time when GWB Trust was formed, that Barcroft had sold his interest under the Contract.

Deny.

39. Candace was aware, at the point in time when GWB Trust was formed, that Barcroft had assigned his interest under the Contract.

Deny.

40. Ken was aware, at the point in time when GWB Trust was formed, that Barcroft had sold his interest under the Contract.

Deny.

41. Ken was aware, at the point in time when GWB Trust was formed, that Barcroft had assigned his interest under the Contract.

Deny.

42. Candace was aware, at the point in time when GWB Trust was formed, that the interest of Barcroft under the Contract was owned by Pentex.

Deny.

43. Ken was aware, at the point in time when GWB Trust was formed, that the interest of Barcroft under the Contract was owned by Pentex.

Deny.

44. Prior to filing the Answer, Candace had never objected to the assertion that Pentex was the owner of Barcroft's interest in the Contract.

KENNETH GII3BS AND CANDACE WALTON'S OBJECTIONS AND R~SPONSES TO PENTEX FOUNDATION'S FIRST SET 01' ADt>·IISSIONS CAUSE NO. CV-14-41665 Pen/ex Foundation vs. Kenneth Vern Gihbs, eta/. -9- .·

135

Deny.

45. Prior to filing the Answer, Ken had never objected to the assertion that Pent ex was the owner ofBarcroft's interest in the Contract.

Deny.

46. Pentex was a voting member and beneticiary of the GWB Trust.

Admit in part; deny in part. Barcroft himself cast votes as Legal Representative for Pentex. Pentex Royalty Trust was Beneficiary.

47. Waymond James Walton was the tirst trustee of the GWB Trust.

Admit.

48. Waymond James Walton is the husband of Candace.

Admit.

49. Every distribution ever made by Waymond James Walton as trustee from the GWB Trust with respect to the Pentex beneficial share was made to Pentex Royalty Trust.

Object, as Request calls for infom1ation beyond the scope of our knowledge and no longer available. Subject to that objection, deny.

50. There is no document to create the GWB Trust signed by all four parties to the Contact.

Admit.

51. The trustee of the GWB Trust has accepted the money and assets due Pent ex starting with the tirst distribution from the Estates, and including every distribution from the Estates.

Object. Cannot admit or deny, as Request calls for infom1ation beyond the scope of our knowledge.

52. Candace entered into the Family Settlement Agreement.

Object, as Request calls for legal interpretation. Subject to that objection, admit.

KENNETII GIBBS AND CANDACE WALTON'S OBJECTIONS AND RESPONSES TO PENTEX FotJNDATION'S FIRST SET OF ADMISSIONS CAUSE No. CV-14-41665 Pente.\ Fo1111dation vs. Kenneth Vern Gibbs, et al. -10-

136

53. Ken entered into the Family Settlement Agreement.

Object, as Request calls for legal interpretation. Subject to that objection, admit.

54. In the Family Settlement Agreement, Candace represented that she had assigned a share of her inheritance to Barcroft.

Object, as Request calls for legal interpretation. Cannot admit or deny.

55. In the Family Settlement Agreement, Ken represented that he had assigned a share of his inheritance to Barcroft.

Object, as Request calls for legal interpretation. Cannot admit or deny.

56.· The Family Settlement Agreement governs and controls assets and funds only until distribution to the heirs and beneficiaries, and after distribution, the Family Settlement Agreement does not control what a beneficiary does with his or her proceeds.

Object, as Request calls for legal interpretation. Subject to that objection, deny.

57. The terms of the Family Settlement Agreement are in relation to, and dictate only, those things that are in the Estates before distribution.

Object, as Request calls for legal interpretation. Subject to this objection, deny.

58 The tem1s of the Family Settlement Agreement have an effect on property of the Estates only until distribution.

Object, as Request calls for legal interpretation. Subject to this objection, deny.

59. John Skotnik is a licensed attorney by the State of Texas.

Admit.

60. A portion of the Pentex share in the Estate of Bert Gibbs, Deceased, was assigned by Ken, as Executor, directly from the Estate of Bert Gibbs, Deceased, to John Skotnik.

Object, as Request calls for information that is not relevant or likely to lead to the discovery of admissible evidence. Subject to this objection, deny, as Pentex owns no share in the Estate of Burt Gibbs.

KENNETH GIBBS AND CANDACE WALTON'S OBJECTIONS AND RESPONSES TO PENTEX FOUNDATION'S FIRST SET OF ADMISSIONS CAUSE NO. CV -14-41665 Pentex Found(tlion vs. Kenneth Vern Gihh.v, et af. -11-

137

60. Barcroft's original share from the Estate of Bert Gibbs, Deceased, was decreased from the Estate ofBert Gibbs, Deceased, by the amount assigned to John Skolnik.

Object, as Request calls for infom1ation that is not relevant or likely to lead to the discovery of admissible evidence. Subject to this objection, deny, as Barcroft does not own a share of the Estate of Bert Gibbs.

61 . There was no written document provided to the Estate of Bert Gibbs, Deceased, from Barcroft or Pentex assigning a portion of the Pentex share from the Estate of Bert Gibbs, Deceased, to John Skotnik.

Deny.

62. Ken, as Executor, relied solely on the Contract to make the assignment to John Skotnik from the Estate of Bert Gibbs, Deceased.

Object, as Request calls for infonnation that is not relevant or likely to lead to the discovery of admissible evidence. Subject to this objection, deny.

63. Ken, as Executor, made the transfer to John Skotnik from the Estate of Bert Gibbs, Deceased, because he knew that Pentex owned Barcroft's share of the Estate of Bert Gibbs, Deceased, and because Barcroft agreed in the Contract to pay Skotnik's fees out of Barcroft's share from the Contract.

Object, as Request calls for infom1ation that is not relevant or likely to lead to the discovery of admissible evidence. Subject to this objection, deny.

64. Pentex did not instruct Ken, as Executor, in writing, to pay its share from the Estate of Bert Gibbs, Deceased, to the GWB Trust.

Admit in part; deny in part. Barcroft instructed the Estate in writing to decrease his portion ofGWB Trust in relation to John Skotnik.

65. Ken, as Executor, and signer of the Family Settlement Agreement as executor, has a fiduciary duty and responsibility to carry out the terms and conditions set forth in the Family Settlement Agreement.

Object, as Request is made for purposes of harassment and calls for legal interpretation. Cannot admit or deny.

66. Ken, as Executor, has a fiduciary duty distribute funds from the Estate of Bert Gibbs.

KENNETII GH311S AND CANDACE WAI:fON'S OBJECTIONS i\NIJ RESPONSES TO PENTEX FOUNDATION'S FIRST SET OF ADMISSIONS CAUSE No. CV-14-41665 Pen/ex Foundation vs. Kenneth Vern Gihhs. eta/. -12-

138

66. Ken, as Executor, has a fiduciary duty distribute funds from the Estate of Bert Gibbs, Deceased, in the proper amount to the proper beneficiaries.

Object, as Request calls for information that is not relevant or likely to lead to the discovery of admissible evidence. The Request is made for purposes of harassment; also, it calls for legal interpretation. Cannot admit or deny.

6 7. Ken, as Executor, has a fiduciary duty to maintain an accounting of expenses and distributions of funds from the Estate of Bert Gibbs, Deceased.

Object, as Request calls for information that is not relevant or likely to lead to the discovery of admissible evidence. Request is made for purposes of harassment; also, it calls for legal interpretation. Cannot admit or deny.

68. Subsequent to the execution of the Family Settlement Agreement, Ken, as Executor, has used funds from the Estate of Bert Gibbs, Deceased to pay attorneys' fees that were owed by Candace.

Object, as Request is made for purposes of harassment. Subject to this objection, deny.

69. Subsequent to the execution of the Fan1ily Settlement Agreement, Ken, as Executor, has used funds from the Estate of Bert Gibbs, Deceased to pay attorneys' fees that were owed by Ken.

Object, as Request is made for purposes of harassment. Subject to this objection, deny.

70. Subsequent to the execution of the Family Settlement Agreement, Ken, as Executor, has used funds from the Estate of Bert Gibbs, Deceased to pay attorneys' fees that were owed by Howard Gibbs.

Object, as Request calls for information that is not relevant or likely to lead to the discovery of admissible evidence. Also, Request is made for purposes of harassment. Subject to this objection, deny.

71. Ken, as Executor, has charged fees for hunting and shooting on real property owned by the Estate ofBert Gibbs, Deceased to his acquaintances and friends, and that he has kept that money for himself.

Object, as Request calls for infmmation that is not relevant or likely to lead to the discovery of admissible evidence. Also, Request is made for purposes of harassment. Subject to this objection, deny.

KENNETH GIBBS AND CANDACE WALTON'S OBJECTIONS AND RESPONSES TO PENTEX FOUNDATION'S FIRST SET OF ADMISSIONS CAUSF. No. CV -14-41665 Penfe.>: Foundation vs. Kenneth Vern Gihhs, eta!. -13-

139

72. Candace is aware that Ken, as Executor, has charged fees for hunting and shooting on real property owned by the Estate of Bert Gibbs, Deceased, to his acquaintances and friends, and that he has kept that money for himself.

Object, as Request calls for information that is not relevant or likely to lead to the discovery of admissible evidence. Also, Request is made for purposes of harassment. Subject to this objection, deny.

73. Ken, as Executor, has benefitted financially from real property owned by the Estate of Bert Gibbs, Deceased being used to raise cattle; and, that he kept all those gains for himself.

Object, as Request calls for information that is not relevant or likely to lead to the discovery of admissible evidence. Also, Request is made for purposes of harassment. Subject to this objection, deny.

73. Candace is aware that Ken, as Executor, has benefitted financially from real property owned by the Estate of Bert Gibbs, Deceased being used to raise cattle; and, that he kept all those gains for himself.

Object, as Request calls for information that is not relevant or likely to lead to the discovery of admissible evidence. Also, Request is made for purposes of harassment. Subject to this objection, deny.

74. The Family Settlement Agreement was signed by Ken on September 5, 2008.

Admit.

75. The Family Settlement Agreement was signed by Candace on September 5, 2008.

Admit.

76. The Family Settlement Agreement described that the "Gibb's Homeplace" consisted of 532 acres of land.

Object, as Request calls for infommtion that is not relevant or likely to lead to the discovery of admissible evidence. Subject to this objection, deny.

77. The Family Settlement Agreement required that the "Gibbs Home place" would be immediately placed on the market for sale at a current market price.

Object, as Request calls for infonnation that is not relevant or likely to lead to the

KENNETH GIBBS AND CANDACE WAt:roN'S OBJEC"l"IONS AND RESPONSES TO PENTEX FOUNDATION'S FIRST SET Of ADMISSIONS CAUSE No. CV -14-41665 Pcme.r Foundation vs. Kenneth Vern Gihhs, eta!. -14-

140

discovery of admissible evidence. Cannot admit or deny, as the Family Settlement Agreement is not clear.

78. Ken, as Executor, did not list the "Gibbs Homeplace" for sale for more than three years after he signed the Family Settlement Agreement.

Object, as Request calls for information that is not relevant or likely to lead to the discovery of admissible evidence. Cannot admit or deny at this time, as it is unknown as to when the Gibbs' Homeplac was placed for sale.

79. Ken does not want to sell the land known as the "Gibbs Homeplace."

Object, as Request calls for information that is not relevant or likely to lead to the discovery of admissible evidence. Also, Request is made for purposes of harassment. Subjection to this object, deny.

80. Candace is aware that Ken does not want to sell the land known as the "Gibbs Homeplace."

Object, as Request calls for information that is not relevant or likely to lead to the discovery of admissible evidence. Also, Request is made for purposes of harassment. Subject to this objection, deny.

81. Candace has expressed in emails that she is aware that Ken does not want to sell the land known as the "Gibbs Homeplace.''

Object, as Request calls for information that is not relevant or likely to lead to the discovery of admissible evidence. Also, Request is made for purposes of harassment. Subject to this objection, deny. Ken does not want to "fire sale" the property, but obtain fair market value.

82. Candace has stated in email that she has supported Ken's decision not to seek a sale of the home place at current market value.

Object, as Request calls for information that is not relevant or likely to lead to the discovery of admissible evidence. Subject to this objection, deny, as Candace has stated that the "Homeplace" should be sold at least at fair market value.

83. Candace has breached the Contract.

Object, as Request calls for legal interpretation as to the validity of the Contract. Subject to this objection, deny.

KENNETH GIBBS AND CANDJ\C'E WALTON'S OBJECTIONS AND RESPONSES TO PENTEX FOUNDATION'S FIRST SET OF ADMISSIONS CAUSE No. CV-14-41665 Pentex Foundation vs. Kenneth Vern Gihhs. eta!. -15-

141

Subject to this objection, deny.

84. Ken has breached the Contract.

Object, as Request calls for legal interpretation as to the validity of the Contract. Subject to this objection, deny.

KENNETH GIBBS AND CANDACE WALTON'S OBJECTIONS AND RESPONSES TO PENTEX FOUNDATION'S FIRST SET OF ADMISSIONS CAUSE NO. CV-14-41665 Pen/ex Foundationvs. Kenneth Vern Gihbs, et al.

CAUSE NO. CV-14-41665

PENTEX FOUNDATION )

)

PLAINTIFF, )

)

vs. )

)

KENNETH VERN GIBBS; AND ) CANDACE GIBBS WALTON; AND ) HowARD KIRK GIBBS, )

)

DEFENDANTS. ) FANNIN COUNTY, TEXAS

FIRST SUPPLEMENT TO OJ!IGINAL ANSWER AND AFFIRMATIVE DEFENSES OF DEFENDANTS KENNEJH VERN GmBS AND CANDACE GmBS WALTON

TO THE HONORABLE JUDGE QF THE COURT:

COME NOW, KENNETfl "Ken" VERN GIBBS and CANDACE "Candy" GIBBS

WALTON, Defendants, by and thtough their Counsel of Record, Law Offices of Christy Lee,

P.C., and file this First Supplement to their Original Answer and No. 20 of their Affirmative

Defenses, and would show the Court, as follows:

I. Ij)EFECTS IN LEGAL CAP ACITY.

1. Pursuant to Rule 93.2 of the Texas Rules of Civil Procedure, Ken denies that

Pentex Foundation or GBU Friends and Associates Trust (collectively, Pentex") has the legal

capacity to sue him, and alternatively, Ken denies that Pentex sued him in the appropriate legal

capacity. See Exhibit A, Affidavit ofKenneth Vern Gibbs.

2. By naming Defendhnts in their individual capacity, Pentex's Original Petition

suggested that Defendants somehow controlled the amounts of distributions to them from the

Estate of Burt Gibbs ("the Estate").

3. Ken is Independent Administrator of the Estate, which is currently in proceedings

FIRST SUPPLEMENT TO ORIGINAL ANSWER AND AFFIRMATIVE DEFENSES OF DEFENDANTS KENNETII VERN GIBBS AND CANDACE GIBBS WALTON CAUSE NO. CV -14-41 142-roN AND GIBBS VS. MiLLER, ET AL. -1 in Statutory Probate Court No.2, Tarrant County, Texas. Cause No. 2205-000126-2.

4. The Heirs litigated several years concerning the Estate, and the Family Settlement

Agreement ("FSA") contained the t~rms to which the parties consented. The FSA was signed by

all the Heirs to the Estate, includipg all three (3) defendants. Albert Barcroft ("Albert") also

signed the FSA.

5. Albert allegedly transferred all of his interest in the FSA, Contract for Sale of

Land ("the CSL"), and the Estate to Pentex. See Exhibit B.

6. The FSA contained :provisions which concerned the Estate's distributions of the

Defendants percentages of interest cimd the payment of attorneys' fees from the Estate. According

to Pentex's Original Petition, from September or October 2008 until April 2014, the Estate

reduced funds due Pentex by the cost of attorney fees that were the obligations of Defendants.

7. In September of 2008, when the FSA was executed, the matter of attorney fees

was accounted for in the calculatioris, and all attorney fees distributions were made by the Estate.

8. At the time the distributions began from the Estate, neither Candy, nor Ken in his

individual capacity held the power or authority to assign interest in the Estate to themselves, to

calculate the percentages of distributions to themselves, to distribute the assets, or pay attorney

fees. Neither Candy, nor Ken in his individual capacity now holds the power or authority to

assign interest in the Estate to tfuemselves or to others, including Pentex, to calculate the

percentages of distributions to themselves, or to distribute Estate assets. Only the Independent

Administrator had and has this authority.

:11. INVALID CONTRACT.

9. Pentex Original Petition argued that Defendants breached the CSL. The CSL

addressed the sale to Albert of a percentage of the Defendants' interest in the Estate.

FIRST SUPPLEMENT TO ORIGINAL ANSWER AND AFFIRMATIVE DEFENSES OF DEFENDANTS KENNETH VERN GIBBS AND CANDACE GIBBS WALTON l~!J'ON AND GIBBS VS. MiLLER, ET AL.

10. Albert is the alter ego and Legal Representative of Pentex. At the time the CSL

was executed, Albert did not, artd does not now, hold a license to practice law. Albert

represented himself to Defendants as possessing a law degree and being fully qualified to

provide legal counsel and to draft legal documents.

11. Albert fraudulently :convinced Defendants of his ability to provide legal advice

regarding the settlement of the Estate. In this capacity as lawyer, Albert presented settlement

terms to Defendants and persuaded: Defendants to agree to the terms in the CSL, in which Albert

was a party.

12. On several occasion; Albert stated to Defendants that he himself drafted the CSL.

13. Albert persuaded Defendants that signing the CSL was in their best interest.

14. As a recipient of a portion of Defendants' proceeds from the Estate, Albert stood

to profit greatly from the CSL. fu addition to his lack of authority to act as legal advisor to

Defendants, Albert engaged in a serious conflict of interest with regard to the CSL. Albert

breached his fiduciary duty to Defendants through his simultaneous involvement with the CSL

and the benefits he derived from it..

15. The validity and legality of the CSL have not been determined and remain highly

dubious.

IIIJ. STATUTE OF LIMITATIONS.

16. Pentex' s Original Petition acknowledged that the FSA, executed in September

2008, "set the terms and conditions; as well as the respective shares due each heir, for the probate

and disbursal" of the Estate. Para;. 19. Pentex further maintained that Defendants unlawfully

enriched themselves by violating the terms under which the distributions of the Estate were to be

made. The specific terms in question addressed the way in which Defendants' payment of

FIRST SUPPLEMENT TO ORIGINAL ANSWER AND AFFIRMATIVE DEFENSES OF DEFENDANTS KENNETH VERN GIBBS AND CANDACE GIBBS WALTON CAUSE NO. CV-14-41665 !ff4'l£0N AND GIBBS VS. MILLER, ET AL. -3-

attorney fees would be accomplished.

17. Pursuant to Section, 16.004 of the Texas Civil Practice and Remedies Code, from

the date of execution of a contract, a party has four (4) years to sue for breach of contract or debt.

18. The statute of limitations for Pentex expired roughly five (5) years ago in

relationship to the CSL, and approximately two (2) years ago in relationship to the FSA.

19. There is no applicable extension to the statute of limitations, as many years ago

Albert, acting in his self-claimed <rapacity of Legal Representative of Pentex, was cognizant of

the fact that the Estate determiried the amounts of disbursements based on Albert's own

calculations.

20. As the author of the CSL, Albert was fully knowledgeable of the terms ofthe CSL

at the time of its execution.

21. Per Provision 3.25(c) of the FSA, Albert also approved and ratified all the terms

of the FSA, which detailed the niethods and manner in which Estate distributions, including

attorney fees, were to be issued: to Defendants. Albert's notarized signature signaled his

knowledge and acceptance of the calculations for the percentages of the distributions, including

attorney fees.

IV:. THIRD PARTY DEFENDANT

22. Albert is "responsible third party," within the meaning of Texas Civil Practice and

Remedies Sec. 33.011(6). Albert has always been the Legal Representative of Pentex. Albert

"represented" Ken and Candy in their disputes with the Estate. Albert directed the Estate in its

distribution of attorney fees and 4as accepted the allotted attorney fees, on behalf of Pentex,

since 2008. If there is any wrongdoing to Pentex, it was caused by Albert, due to his negligent

actions or omissions and his conduct.

FIRST SUPPLEMENT TO ORIGINAL ANSWER AND AFFIRMATIVE DEFENSES OF DEFENDANTS KENNETH VERN GIBBS AND CANDACE GIBBS WALTON 1~ON AND GIBBS VS. MILLER, ET AL.

Respectfully submitted, LAW OFFICES OF CHRISTY LEE, P.C.

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

ATTORNEY FOR KENNETH GIBBS AND CANDACE WALTON

FIRST SUPPLEMENT TO ORIGINAL ANSWER AND AFFIRMATIVE DEFENSES OF DEFENDANTS KENNETH VERN GIBBS AND CANDACE GIBBS WALTON CAUSE No. CV -14-41665 1rJ.i46'0N AND tJJBBS VS. MILLER, ET AL. -5-

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing document was delivered, pursuant to Texas Rules of Civil Procedure, to the following parties on this 23rd day of July, 2014:

Pentex Foundation and Via email per Rule 11 Agreement GBU Family and Friends Trust c/o Scott Smith, Attorney of Record P.O. Box 354 Sherman, TX 75418

Howard Kirk Gibbs Via email per Rule 11 Agreement 9929 Crawford Farm Drive Fort Worth, TX 76244

FIRST SUPPLEMENT TO ORIGINAL ANSWER AND AFFIRMATIVE DEFENSES OF DEFENDANTS KENNETH VERN GIBBS AND CANDACE GIBBS WALTON CAUSE NO. CV-14-41665 l~ITON AND GIBBS VS. MILLER, ET AL. -6-

CAUSE No. CV-14-41665

PENTEx FOUNDATION, ) IN 1HE DISTRICf COURT PLAINTIFF, )

)

vs. ) 336m JUDICIAL DIS1RICf )

KENNEm VERN GmBS; AND ) CANDACE GmBS WALTON; AND ) HOWARD K1R.K. GmBs, )

DEFENDANTS. ) FANNIN COUNTY, TExAs

AFFIDAVIT OF KENNEm VERN GIBBS

I, Kenneth Vern Gtbbs, having been first duly sworn, state the following:

1. I am over the age of eighteen (18) years. I am Defendant in this Matter before the Court I confirm that all of the following facts are true and correct

2. I am Independent Administrator of the Estate of my father, Bert Hughes Gibbs.

The Estate probate is being heard before Probate Court No. 2, of Tarrant County, Texas. Cause No. 2005-0000126.

3. On April 1, 2014, Pentex Foundation ("Pentex"), ak.a. Albert Barcroft, a.k.a GBU Friends and Associates Trust, filed the current case against Defendants, including mysel~ in their individual capacities. Pentex is suing me and my sister, Candace Gibbs Walton. for attorney fees that were paid by the Estate.

4. I deny that Pentex has the legal capacity to sue me, and alternatively, I deny that Pentex sued me in the appropriate legal capacity

5. The Family Settlement Agreement ("FSA") was signed by all the heirs to the Estate. Albert Barcroft also signed the FSA The heirs litigated several years concerning the Estate, and the FSA was the settlement between the parties.

6. FSA contained provisions which concerned the Estate's distributions of the heirs'

percentages of interest and the payment of attorneys' fees. According to Pentex's Original Petition, from September or October 2008 until April2014, the Estate reduced funds due Pentex by the cost of attorney fees that were the obligations of Defendants.

7. In August and September of 2008, when the FSA was executed, the matter of attorney fees was accounted for in the calculations, and all attorney fee distributions were made by the Estate.

AmDAVIT OF KENNI!1H VI!RN GmBS CAUSE NO. CV-14-41665 Penta Foundation vs. Gibbs eta/. -1-

Exhibit A ,.

148 Page i

149

8. At the time distributions from the Estate began, neither my sister, Candace, nor myself in my individual capacity had the power or authority to assign interest in the Estate to Defendants, to calculate the percentages of distributions to Defendants, or to distribute the assets.

9. Neither my sister, Candy, nor I myself in my individual capacity now have the power to alter the manner in which the Estate continues to distribute assets, including payment of attorney fees.

10. Therefore, I refute all accusations against me as advanced by Pentex in its Original Petition.

Further the Affiant saitb not.

~V/1& K~ethVeJllGibbS

SUBSCRIBED AND SWORN TO before me by Kenneth Vern Gibbs on this L._ 3 day of July, 2014, to attest witness my hand and seal of office.

ANNA GREEN Notary Public in an PIJI)IIC State ol T8110S Notorv •••....,. expires My Commission e · Mv comm1.,_,.. · september o&. 1017

AFFIDAVIT OF KENmml VERN GIBBS CAUSE NO. CV-14-41665 Pentex: Foundation vs. Gibbs eta/. -2-

.b. A ~:~ - EXhI it fl,·~~:::~,./}., -~ ~'/

Page .J.. of ;; :

PENTEX FOUNDATION A Private Foundation of Panama, C.A.

December 18, 2013

To: Kenneth Vern Gibbs, Executor for the Estate of Bert Hughes Gibbs 4212 Wheeler, Ft. Worth, TX 76117

To: Rickey Brantley, Attorney for the Estate of Bert Hughes Gibbs 855 Texas St, Fort Worth, TX 76102

To: Scott Pelley, Attorney for the Estate of Bert Hughes Gibbs 707 West Washington, Sherman, TX 75092-5639

To: Jimmy Walker, Attorney, Permanent Guardian of Kathryn Gibbs 815 Walker, Suite 240, Houston, TX 77002-5762

Dear Mr. Gibbs, Mr. Brantley, Mr. Pelley and Mr. Walker:

This notice is to inform the Estates of Bert and Kathryn Gibbs [•Estates"] that the original 30% assignment titled "Contract for Sale of Land, Mineral "fUUhts and Royalties, and all other Assets or Monies Received from the Estate of Bert Huahes Gibbs, Kathryn G. Gibbs, and/or the Mary L Houseworth Trust(s) or 'The Kathryn Houseworth Gibbs Irrevocable Trust'• ["CSL•] to AI Barcroft has been transferred to GBU Friends and Associates Trust ["GBU"] from G~B Family and Friends Trust ["GWB"] effective November 26, 2013; and, that all future distributions relating to this 3096 assisnment by Kenneth Vern Gibbs, Candace Walton Gibbs and Howard Kirk Gibbs ["Gibbs Children"') to AI Barcroft should ·be remitted directly to GBU, 410 Anderson County Rd 154, Palestine, Texas 75801.

Item number 6 of the CSL provided for the creation of a business orpnlzatlon that would receive and distribute the 70% portion of the Estates' distributions owned by Kenneth Vern Gibbs, Candace Gibbs Walton and Howard Kirk Gibbs [collectively "Gibbs Children"] along with the~ assignment to AI Barcroft; and GWB, a revocable trust, was created on or about November 7, 2008, in accordance with that requirement. The CSL

Notice of Transfer to GBU Page 1 ofl

Exhibit f3 150 Page_-.:/_of 3

151

further provided in the same paragraph thot ony parfV may demflnd a split of the assets ofmid business organlzcrtlon at any time. PENTEX FOUNDATION, a settlor of GWB and current assignee of the 30% assignment from AI Barcroft, has revoked Its contribution to GWB and assigned its share of the assets residing in GWB to GBU. PENTEX FOUNDATIION hereby affirms that its share due from the Estates relating to the 30% assignment are now transferred to the GBU, and all future distributions relating to said 30% assignment by either Estate should be made payable to GBU.

In accordance with the Gibbs Family Settlement Agreement [•FSA..], Kip Gibbs was to receive 25% of the Estates of Bert and Kathryn Gibbs with the remaining 75% going to the Gibbs Children. In accordance with the FSA and the CSL, 22.5% of the distributions by the Estates Is owned by and related to this original 30% assignment. However, 2.46% of the original 22.5% of the gross Estates is being paid directly to John Skotnik, leaving the assignee with 20.04% of the gross distributions of the Estates.

THEREFORE, FROM THIS DATE FORWARD, Notice and Demand is hereby made upon the Estates of Bert and Kathryn Gibbs, that from the date of this notice forward, that portion of all distributions made by the Estates of Bert and/or Kathryn Gibbs related to the original 30% assignment made by the Gibbs Children to AI Barcroft, and currently being paid to GWB Family and Friends Trust, be distributed and made payable to; and, be sent directly to: GBU Friends and Associates Trust 410 Anderson County Road 154 Palestine, Texas 75801 The tax number for GBU Friends and Associates Trust is XX-XXXXXXX.

If either Estate disagrees with the calculation referred to herein, or needs any further verification of any documents related to this transfer, please notify me Immediately by e-mail to albertbarcroft@gmail.com. specifically identifying any mistake in the calculation and/or required verification; or, as to any reason why future distributions will not be made directly go GBU Friends and Associates Trust as requested.

Notice of Transfer to GBU Page2of3

Exhibit /3.

Page ) of _.;;:;3.....:.ou,_

152

On behalf of AI Barcroft, Pentex Royal Trust, PENTEX FOUNDATION, and/or RENHAW, INC., conjunctively and/or individually, I hereby stipulate that a photocopy of a scanned e-mail or fax of this document, and any attachments, may be used as originals for all legal purposes.

I hereby certify and affirm with my sipature below under penalty of perJ..-y under the laws of the United States of America that I am the lepl representative for Pentex Royalty Trust, PENTEX FOUNDATION, and RENHAW, INC.; and, as such, I have the authority to make alllepl decisions on their behalf. (28 usc§ 1746(1))

Further, Beverly Miller, Trustee of the GWB Family and Friends Trust, is in the possession of the original authorization for me to represent those entities; and, she will provide copies of same If necessary.

Dated and Signed this 18th day of December, 2013.

~~ Albert Lynn Barcroft In my personal capacity, and as legal representative for PENTEX FOUNDATION, Pentex Royalty Trust, and RENHAW, INC.

... cc: Kenneth Vern Gibbs, Rickey J. Brantley, and Scott Pelley by United States Postal Service, Certified Mail, Return Receipt Requested to the addresses shown in the heading hereto.

cc: By e-mail to:

Rickey Brantley at rickey@rickeybrantley.com Scott Pelley at spelley@npwlawfirm.com

Notice of Transfer to GBU Page3of3

Page

L<\1\ OWJCES OF

Cu~1sn· L. LE~o:

Attorney

777 M!\1!\ St. S'J'E. 600 FOR'I'WOR'I'II. TEXAS 76102 PIIOI\E: 817.504.6075 FAX: 800.437.7901

clee@christyleelaw.com July 23, 2014 www.christyleelaw.cum

Clerk of the Court 10 I E Sam Rayburn Drive, Suite 200 Bonham, TX 75418

Re: Cause No. CV-14-41665 Pentex Foundation vs. Kenneth Vern Gibbs, et al.

To Whom It May Concern:

Enclosed is one (1) original document to file with the Court in the above-noted cause: First Supplement to Original Answer and Affirmative Defenses of Defendants Kenneth Vern Gibbs and Candace Gibbs Walton. Also enclosed is a copy of the document.

Please file the original document with the Court, and return the file-marked copy to the firm in the enclosed self-addressed, stamped mailer.

If you have any questions, please contact our office. Thank you for your assistance with this matter.

Very truly yours, LAW OFFICES OF CHRISTY LEE, P.C.

'J { I ;{;__, I Jj/;<~ Laura Hogins, Paralegal

Enclosures

153 I' R tl \ I 1 1 \ I '( \ \ S I R \ I I I, I I \

154

NO. CV-14-41665

PENTEXFOUNDATION, § Plaintiff § § v. § § KENNETH VERN GIBBS, CANDACE § GIBBS WALTON and HOWARD § KIRK GIBBS, Defendants § 336th JUDICIAL DISTRICT

PLAINTIFF'S AND INTERVENOR'S MOTION FOR PARTIAL SUMMARY JUDGMENT

COME NOW, Pentex Foundation, Plaintiff, and Joshua Unger, Trustee of

the GBU Friends and Associates Trust, Intervenor, pursuant to TEX. R. CIV. P.

166a, move the Court for Partial Summary Judgment in this suit against Kenneth

Vern Gibbs, Candace Gibbs Walton, and Howard Kirk Gibbs, Defendants, and,

would show the honorable court as follows:

SUMMARY OF MOTION

1. Movants and Defendants have a long history, going back to 2005,

when they entered into a Contract whereby Movant's predecessors in interest were

granted thirty percent of certain Estates. 1 The parties have performed under the

contract for years, have made distributions, have recognized certain assignments,

and have re-affirmed their respective positions in subsequent documents.

However, two of the parties- Candace Walton and Kenneth Gibbs- have recently

Certain terms in this motion such as "Contract" and "Estates" are defined in this motion and capitalized for convenience. MOTION FOR PARTIAL SUMMARY JUDGMENT .... PAGE I

155

'-"''

decided to change course and take actions that are inconsistent with their almost

decade-old Contract. Movants seek a declaration that the terms of the original

contract remain in effect, and confirming the parties' respective interests.

UNDISPUTED FACTS

2. On or about the lOth day of May, 2005, a Contract was entered into

between Mr. Albert Barcroft and all three Defendants, whereby the Defendants

each sold to Mr. Barcroft a thirty percent interest (the "Barcroft Interest") in

specified estates and related interests? Each Defendant remained an owner of a

lesser portion of the Estates. 3 Intervenor is the present holder of the Barcroft

A true and correct copy of the Contract is submitted in the Binder of Exhibits in Support of Motion for Partial Summary Judgment as Plaintiffs Exhibit "1". The various estates are described in the Contract. For convenience they shall be referred to herein as "Estates." The existence of the Contract is not in dispute, as Defendants specifically refer to it in paragraph 9 of their Motion to Show Authority, etc., on file herein. Movants request that the Court take judicial notice ofthe contents of its own file. TEX. R. Evm. 201.

Also, it is an admitted fact. See, Kenneth Gibbs and Candace Walton's Objections and Responses to Pentex Foundation's First Set of Admissions (referred to as "Kenneth and Candace's Admissions"), at number 1, 6 and 7. A true and correct copy of Kenneth and Candace's Admissions are submitted in the Binder of Exhibits in Support of Motion for Partial Summary Judgment as Plaintiffs Exhibit "3" See also, the Admissions in Response to Intervenor's Request for Admissions by Howard Gibbs (referred to as "Howard's Admissions"), at number 1-6, 14. A true and correct copy ofthe Admissions of Howard Gibbs are submitted in the Binder of Exhibits in Support of Motion for Partial Summary Judgment as Plaintiffs Exhibit "4"

The Contract provides Ken shall receive 23.34%, Candy shall receive 23.33%, and Howard shall receive 23.33% each in any distribution from the created business organization. Howard's Admissions 43. MOTION FOR PARTIAL SUMMARY JUDGMENT .... PAGE 2

156

Interest. 4

3. For the purposes of this motion, a critical term of the Contract was the

provision by which attorneys' fees would be incurred and paid. The Contract, on

page 3, subsection c, provided:

Barcroft, at his expense, will provide legal counsel by acquiring a licensed attorney for any reasonable and prudent actions necessary to the collecting of the funds from the sources stated herein; however should Gibbs, or any of the individual Gibbs, feel that their/his/her interests are not properly served by the attorney Barcroft provides, that party will be responsible for the legal fees of any other attomey(s) hired by Gibbs, or any individual Gibbs, to protect their/his/her interests.

(Emphasis added).

4. The Contract, in paragraph 6, additionally envisioned the creation of

"business organization" to facilitate the terms of the Contract. 5 In the Fall of2008,

the Defendants purportedly created a business organization known as GWB Family

and Friends Trust ("GWB"), a purported trust, supposedly in compliance with the

terms of the Contract to "help facilitate the terms of the contract". 6 Importantly,

The Barcroft Interest was conveyed by Albert Barcroft to Renhaw, Inc. Renhaw, Inc. in turn subsequently assigned the Barcroft Interest to Pentex Foundation. Pentex Foundation in tum subsequently assigned the Barcroft Interest to the GWB Trust, but later revoked that assignment and assigned the interest to the GBU Friends and Associates Trust. Howard Admissions at number 21.

Kenneth and Candace's Admissions, at number 31; Howard's Admissions at number 17.

There is no document signed by all four parties to the Contract to set up the GWB Trust.

Kenneth and Candace's Admissions at number 50; Howard's Admissions at number 16, 20, 30. MOTION FOR PARTIAL SUMMARY JUDGMENT .... PAGE 3

157

the Contract also provided, on page 4, that any party could demand a split of the

assets out of the business organization at any time. 7

4. On or about September 5, 2008, a Family Settlement Agreement

("FSA") agreement was reached by the Defendants with respect to the Estates and

how the Estates would be divided. 8 The Contract was specifically recognized and

confirmed in the FSA, at page 33, in section 3.25 (c):

Ken, Candy, and Howard Kirk represent that they have assigned an interest to Al Barcroft, who approves and ratifies all of the terms and provisions of this Agreement as represented by his execution of this Agreement.

The FSA, page 22, section 3 .15A, also restated and reconfirmed that Defendants

were solely responsible for any attorney fees; thereby confirming that provision in

the Contract. Naturally, the Family Settlement Agreement governs and controls

the Estate assets only until distribution to the heirs and beneficiaries. 9 Obviously,

after distribution the Family Settlement agreement does not control what a

beneficiary does with his or her proceeds. I d.

Kenneth and Candace's Admissions at number 33; Howard's Admissions at number 15, 19, 44.

A true and correct copy ofthe FSA is submitted in the Binder of Exhibits in Support of Motion for Partial Summary Judgment as Plaintiffs Exhibit "2". Kenneth and Candace's Admissions at number 52, 53, 74, 75; Howard's Admissions at number 32-37.

Howard's Admissions at number 38.

MOTION FOR PARTIAL SUMMARY JUDGMENT .... PAGE 4

158

5. Pursuant to the terms of the FSA, Defendants were each awarded 25%

of the Estates, totaling 7 5% of the total of the combined Estates. Each Defendant

had previously sold 30% of their share to Barcroft under the Contract, meaning

that the Barcroft Interest was 22.50% of the Estates (or 30% of 7 5%). 10 The

Plaintiff assigned 2.46% of Plaintiffs 30% to attorney John Skotnik; then leaving

the Barcroft Interest at 20.04% of the Estates (being 22.50% less 2.46%). 11 In sum,

the Barcroft Interest in the Estates is presently at 20.04%.

6. The parties performed under the terms of the Contact for years. 12 All

parties received distributions under the terms of the Contact since November of

2008. Prior to initiating litigation in 2014, no party had ever challenged the

Contract. 13

WHY PARTIAL SUMMARY JUDGMENT IS IMPORTANT

7. The following is not submitted as part of the motion for partial

summary judgment, but rather to demonstrate why entry of a partial summary

judgment is time sensitive and will assist in resolution of the parties' disputes.

10 Kenneth and Candace's Admissions at number 34; Howard's Admissions at number 54 ..

11 Howard's Admissions at number 39-42, 52.

12 Howard Admissions at number 31.

13 Howard's Admissions at number 10.

MOTION FOR PARTIAL SUMMARY JUDGMENT .... PAGE 5

159

8. Performance was not without issues though. In 2013, Candace

Walton demanded an accounting from the trustee of the GWB trust. 14 As a result

of that accounting Plaintiff discovered what it believed to be improprieties in

distributions. 15 Specifically, Plaintiff believed that contingent attorneys' fees

incurred solely by the Defendants were being deducted before distributions were

being made to GWB. In Plaintiff's opinion, this was a wrongful dilution of the

Barcroft Interest as distributed into GWB, because by virtue of the Contract the

Barcroft Interest was not to be diminished by attorneys' fees incurred by the

Defendants.

9. As a result, on November 26, 2013, Plaintiff invoked its right to

demand a split of the assets of the "business organization" known as GWB. The

trustee ofGWB complied. However, Kenneth Gibbs and Candace Walton took

issue, hired counsel, and counsel notified gas companies from which royalties are

paid to Plaintiff to suspend payments. The end result is that royalties due to

Plaintiff are being held hostage as a result of communications from counsel for

Kenneth Gibbs and Candace Walton.

14 See, the unsworn declaration of Danny Unger pursuant to TEX. Ctv. PRAC. & REM. CODE § 132.001, submitted herewith as Plaintiffs Exhibit "5". 15 Movants characterize this as Plaintiffs contentions. While Plaintiff believes them to be true and an issue for a different hearing, the validity of these contentions are irrelevant to the issues the subject of this motion. The only material fact is that Plaintiff made the demand. MOTION FOR PARTIAL SUMMARY JUDGMENT .... PAGE 6

160

RELIEF SOUGHT

10. Intervenor has a right to specific performance under the Contract.

Intervenor seeks judgment confirming the percentage of ownership of the

Intervenor's interest and that of Defendants, and a declaratory judgment that the

Contract is valid and enforceable under the laws of the State of Texas.

11. Considering all of the summary judgment proof presently before the

Court, including this Motion and the exhibits attached hereto, Plaintiff and

Intervenor claim that they have established each and every element of its cause of

action against Defendants with respect to the issues raised, that Defendants have

failed to raise a genuine issue as to any material fact herein, and that Plaintiff and

Intervenor are entitled to partial summary judgment against Defendants on the

issues raised in this Motion.

WHEREFORE, PREMISES CONSIDERED, Plaintiff and Intervenor pray

that the Court set this matter for hearing, and upon such hearing enter a partial

summary judgment confirming the percentage of ownership of the Intervenor's

interest and that of Defendants, and a declaratory judgment that the Contract is

valid and enforceable under the laws of the State of Texas.

MOTION FOR PARTIAL SUMMARY JUDGMENT .... PAGE 7

161

State Bar Number 18688900 120 South Crockett Street . ~: ·-r~ P.O. Box354 " ._ ... Sherman, Texas 75091-0354 ·=, :.·\;~j e-mail smithlaw@airmail.net :3~~-~ ~-;..:

;o Facsimile (903) 870-1446 "..::4yl Telephone (903) 868-8686 -<r'1 . n --1 :.., t"'"i ;-- ........

FIAT ~·· .

The above and foregoing Motion shall be heard by the Court at CK ; 3 7J o'clock

/l_.m. on the 30 day of S,p ~> '2014.

'1 JUDGE PRESIDING

CERTIFICATE OF SERVICE

I do hereby certifY that a true and correct copy of the above and foregoing document was served, by email pursuant to agreement compliant with TEX. R.Clv. P. 11, upon Christy L. Lee, Esq., of Law Offices of Christy Lee, P.C., 777 Main Street, Suite 600, Fort Wo Te 76102, and to Howard Kirk Gibbs, Pro Se, at 4360 Western Center Blvd., Suite 205, Ft. 76137, on this August 11,2014.

'

MOTION FOR PARTIAL SUMMARY JUDGMENT .... PAGE 8

162

: '

PENTEX FOUNDATION, Plaintiff

v. KENNETH VERN GIBBS, CANDACE GIBBS WALTON and HOWARD KIRK GIBBS, Defendants 336'h JUDICIAL DISTRICT

BINDER OF EXHIDITS IN SUPPORT OF PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

COME NOW, Pentex Foundation, Plaintiff, and Joshua Unger, Trustee of

the GBU Friends and Associates Trust, Intervenor, submit this Binder of Exhibits

in Support of their Motion for Partial Summary Judgment, and submit the

following exhibits:

1. Contract.

2. Family Settlement Agreement.

3. Kenneth and Candace's Admissions.

4. Howard Gibbs Admissions

5. Unsworn Declaration of Danny Unger

BINDER OF EXHIBITS IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT .... PAGE I

163

State Bar Number 18688900 120 South Crockett Street P.O. Box354 Sherman, Texas 75091-0354 e-mail smithlaw@airmail.net Facsimile (903) 870-1446 Telephone (903) 868-8686

CERTIFICATE OF SERVICE

I do hereby certify that a true and correct copy of the above and foregoing document was served, by email pursuant to agreement compliant with TEX. R.CIV. P. 11, upon Christy L. Lee, Esq., of Law Offices of Christy Lee, P.C., 777 Main Street, Suite 600, Fort Worth as 76102, and to Howard Kirk Gibbs, Pro Se, at 4360 Western Center Blvd., Suite 205, Ft."" h exas 7 , on this August 11,2014.

---- --

BINDER OF EXHIBITS IN SUPPORT OF MOTION FOR PARTW, SUMMARY JUDGMENT .... PAGE 2 ... Patty Kreider

From: Scott Smith <smithlaw@airmail.net> Sent: Wednesday, September 03, 2014 2:27 PM To: Patty Kreider Subject: Re: Request for hearing on CV-14-41665 Pentex vs. Gibbs

After I filed the motion she voluntarily moved the date. It is moot now but another one is on its way to you. When you get it, I am fine with it being put on the September 30th setting.

Regards, Scott ----- Original Message ----- From: Pattv Kreider To: 'Scott Smith' Sent: Wednesday, September 03, 2014 2:22PM Subject: Request for hearing on CV-14-41665 Pentex vs. Gibbs

Scott,

Your request for a hearing on the defendant's disposition date has made its way to my desk. I'm assuming you want it long before the existing hearing date on September 3Qth since the disposition is set for the 25th. The following are possibilities for a 30 minute hearing:

• September 12th, 8:30a.m. • September 15th, 8:30a.m. • September 16th, 8:30 a.m. or 1:00 p.m. • September 19th, 8:30a.m.

If one of these dates will work for you and Ms. Lee (in light of her medical leave), let me know. If not we can go into the week of the 22nd, although that is pushing it and we have a criminal jury trial set to start that morning.

Patty Kreider Court Coordinator 336th Judicial District Court 101 E. Sam Rayburn Dr., Ste. 200 Bonham, Texas 75418 (903) 583-2863

Wisdom is the quality that keeps you from getting into situations where you need it.

From: Scott Smith [mailto:smithlaw@airmail.net] Sent: Tuesday, September 02, 2014 3:00PM To: Patty Kreider Subject: Re: Atty Lee's medical Leave

Patty, 164 1

Patty Kreider

From: Patty Kreider < pdkreider@fanninco.net> Sent: Wednesday, September 03, 2014 2:23 PM To: 'Scott Smith' SubjeCt: Request for hearing on CV-14-41665 Pentex vs. Gibbs

Scott,

Your request for a hearing on the defendant's disposition date has made its way to my desk. I'm assuming you want it long before the existing hearing date on September 3Qth since the disposition is set for the 25th. The following are possibilities for a 30 minute hearing:

• September 12th, 8:30a.m. • September 15th, 8:30a.m. • September 16th, 8:30a.m. or 1:00 p.m. • September 19th, 8:30a.m.

If one of these dates will work for you and Ms. Lee (in light of her medical leave), let me know. If not we can go into the week of the 22nd, although that is pushing it and we have a criminal jury trial set to stqrt that morning.

Patty Kreider Court Coordinator 336th Judkial District Court 101 E. Sam Rayburn Dr., Ste. 200 Bonham, Texas 75418 (903) 583-2863

Wisdom is the quality that keeps you from getting into situations where you need it.

From: Scott Smith [mailto:smithlaw@airmail.net] Sent: Tuesday, September 02, 2014 3:00 PM To: Patty Kreider Subject: Re: Atty Lee's medical Leave

Patty,

Her father is terminally ill. As I recall, her letter advising of her leave did indicate that she would still attend to this hearing.

Regards, Scott

Sent from my iPad

165 1

166

I

On Sep 2, 2014, at 2:52PM, "Patty Kreider" <pdkreider~Hanninco.net> wrote:

You're welcome. I've still had no response from Ms. Lee's office. I'll copy you on any correspondence I have from her. Perhaps this was a family emergency. It doesn't make sense that they didn't file appropriate motions for continuance and work with your office to get these matters rescheduled.

Patty Kreider Court Coordinator 336th Judicial District Court 101 E. Sam Rayburn Dr., Ste. 200 Bonham, Texas 75418 (903) 583-2863

Wisdom is the quality that keeps you from getting into situations where you need it.

' '

From: Scott Smith [mailto:smithla~airmail.net] Sent: Tuesday, September 02, 2014 1:41 PM To: Patty Kreider Subject: Re: Atty Lee's medical Leave

Thank you very much.

Scott

Sent from my iPad

.· On Sep 2, 2014, at 1:09PM, "Patty Kreider" <pdkreider@fanninco.net> wrote:

<irnageOOl.jpg> Yes, Scott. I still have the hearing set with yours and their matters. I was really trying to bring the defendant's notice of medical leave to your attention by copying you. There has been no request on their part for a continuance of their motions. I was trying to get a response as to their intentions, while keeping you in the loop.

Patty Kreider ·Court Coordinator 336th Judicial District Court 101 E. Sam Rayburn Dr., Ste. 200 Bonham, Texas 75418 (903) 583-2863

Wisdom is the quaUty that keeps you from getting into situations where you need it.

From: Scott Smith [mailto:smithlaw@airmaiL~J;] Sent: Tuesday, September 02, 2014 1:02PM To: Patty Kreider Subject: Re: Atty Lee's medical Leave

Patty,

Please remember that the Plaintiff and Intervenor also have matters set at that time.

Regards, Scott ----- Original Message ----- From: Patty Kreider To: clee@christyleelaw.com Cc: smithlaw@airmail.net Sent: Tuesday, September 02, 2014 10:38 AM Subject: Atty Lee's medical Leave

Re: Attorney for the Defendant Christ Lee's notice of medical leave of absence

Good morning, Ms. Lee.

I am in receipt of your Notice of Leave indicating a 3 month Family Medical leave from August 25,2014 through November 25,2014.

A 1/2 day hearing was set (on June 19, 2014) for September 30,2014,8:30 a.m., on Defendant's motions to show authority, to change venue, rule 13, for sanctions, to strike intervention and to dismiss.

Is it now to be understood defendant no longer desires a hearing on these motions?

Patty Kreider Court Coordinator 336th Judicial District Court 101 E. Sam Rayburn Dr., Ste. 200 Bonham, Texas 75418 (903) 583-2863

Wisdom is the quality that keeps you from getting into situations where you need it.

167 3

168

PENTEX FOUNDATION, § Plaintiff § § v. § § KENNETH VERN GIBBS, CANDACE § GIBBS WALTON and HOWARD § KIRK GIBBS, Defendants § 336 1b JUDICIAL DISTRICT

MOTION TO QUASH OR FOR PROTECTIVE ORDER RELATING TO SUBPOENAS AND DEPOSITION NOTICES

TO THE HONORABLE JUDGE OF SAID COURT:

COME NOW, Pentex Foundation, Plaintiff, and Joshua Unger, Trustee of

the GBU Friends and Associates Trust, Intervenor, in the above entitled and

numbered cause, file this Motion to Quash or for a Protective Order Relating to

Subpoenas sent by counsel for Defendants to the undersigned on August 28, 2014,

and in support of the order shows:

SUBPOENAS THE SUBJECT OF THIS MOTION

1. On August 28, 2014, Defendants sent by facsimile four putative

subpoenas. A copy of the subpoenas is attached hereto as Plaintiffs Exhibit "A".

Each document purports to have witnesses appear and testify concerning the

Defendant's Motion to Show Authority on September 30, 2014. 1

Filed around April 24, 2014, as part of the Defendant's Original Appearances.

MOTION TO QUASH OR FOR PROTECTIVE ORDER RELAT!NG TO SUBPOENAS AND DEPOSITION NOTICES ... PAGE 1

169

2. Thereafter on September 2, 2014, Defendants issued four separate

Subpoena Duces Tecum for Oral Depositions. A copy of the deposition

subpoenas is attached hereto as Plaintiffs Exhibit "E".

THE UNDERLYING MOTION TO SHOW AUTHORITY IS SPECIOUS

3. The motion to show authority is specious and another in a long line of

actions on the part of Defendants to cause their adversaries to spend money on

attorney's fees. A similar motion was brought and considered in a Tarrant County

Probate Court on July 31, 2014. At that hearing, Defendants called the

undersigned to testify, and therein the undersigned produced a copy of his fee

agreement with the Plaintiff. A copy of that fee agreement is attached hereto as

Plaintiffs Exhibit "B". The undersigned testified as well that the designated

representative for Plaintiff for purposes of litigation was Mr. Danny Unger.

Finally, after the hearing the undersigned submitted a resolution from Plaintiff

wherein his engagement was authorized. A copy of the letter to the Tarrant

County Probate Court, with the resolution attached is attached hereto as Plaintiff's

Exhibit "C".

4. Most importantly, in the Tarrant County hearing, counsel for the

MOTION TO QUASH OR FOR PROTECTIVE ORDER RELATING TO SUBPOENAS AND DEPOSITION NOTICES ... PAGE 2

170

Defendants acknowledged that Pentex Foundation was valid. 2 Therefore, the only

question has been whether counsel has been validly retained - not whether Pentex

Foundation is a valid entity.

5. As the Court might imagine, there are not many cases with respect to

motions to show authority. This is because it is a procedure rarely used. One such

case describes the appropriate response to such a motion:

Typically, in response to a Rule 12 motion, an attorney satisfies his or her burden to establish their authority to prosecute or defend a suit through an affidavit from the client indicating the attorney was retained to provide representation in the case, and/or through testimony of the attorney.

Patton Children's Trust v. Elmer, 2008 Tex. App. LEXIS 6396 (Tex. App. - El

Paso 2008). Here, by virtue of the Tarrant County proceedings, and in particular

the resolution from Plaintiff specifically authorizing the engagement of the

undersigned, counsel for Defendants has been aware that the undersigned has met

his burden. Why then the subpoenas? It is simple harassment.

THE SUBPOENAS FOR INDIVIDUALS IN GUATAMALA AND PANAMA ARE INVALID

6. The subpoenas have each been sent to the undersigned, presumably as

service upon the witnesses. One such witness is Albert Barcroft, who resides in

2 Rather than rely upon the vagaries of memory, a transcript ofthe testimony of the undersigned has been requested and will be made available at the hearing on this motion. MOTION TO QUASH OR FOR PROTECTIVE ORDER RELATING TO SUBPOENAS AND DEPOSITION NOTICES ... PAGE 3

171

Guatamala and who is medically unable to travel. 3 Another is for Angelli

Carrasco, a resident of Panama, who does not have a passport for international

travel. The undersigned has repeatedly advised counsel for Defendants that he

does not represent either of these individuals.

7. As shown by Plaintiffs Exhibit "E", Pentex Foundation does not

control either Mr. Barcroft. Pentex Foundation does not control Ms. Carrasco. 4

They are not employees ofPentex Foundation, and Pentex Foundation does not,

and cannot control their activities, time or movement. Pentex Foundation cannot

compel either to attend to legal matters in the United States.

8. TEX. R. CIV. P. 176.5(a) permits service of a subpoena to an attorney

for on "a party [who] is represented by an attorney." However, neither Mr.

Barcroft, nor Ms. Carrasco are parties. Likewise, as Defendants have been

repeatedly advised, they are not represented by the undersigned in this action. As

such, sending subpoenas through the undersigned is not permitted under Texas

law, and not effective service. Wal-Mart Stores v. Rand, 754 S.W.2d 153 (Tex.

3 See, the unsworn declaration by Albert Lynn Barcroft submitted herewith as Plaintiffs Exhibit "F", which is submitted pursuant to TEX. Civ. PRAC. & REM. CODE§ 132.001, and correspondence from the physician for Mr. Barcroft attached hereto as Plaintiff's Exhibit ''D".

4 An unsworn declaration from Ms. Carrasco was not available at the time of filing this motion because of the logistics in obtaining it from Panama. It is anticipated that it will be submitted prior to hearing on this motion. MOTION TO QUASH OR FOR PROTECTIVE ORDER RELATING TO SUBPOENAS AND DEPOSITION NOTICES ... PAGE 4

172

1988); In Re Reaud, 286 S.W.3d 574 (Tex. App.- Beaumont 2009); In Re: Grass,

153 S.W.3d 659 (Tex. App.- Tyler 2004).

9. With respect to the deposition notices, a notice for an oral deposition

must state a reasonable time and place for the deposition. Tex. App. Civ. P.

199.2(b)(2). The place may be in (1) the county of the witness's residence; (2) the

county where the witness is employed or regularly transacts business in person; (3)

the county of suit if the witness is a party or designated as a party representative

under Rule 199.2(b)(l); (4) the county where the witness was served with the

subpoena, or within 150 miles of the place of service, if the witness is not a Texas

resident or is a transient person; or (5) subject to the foregoing, at any other

convenient place directed by the court in which the cause is pending. !d.

"Convenience" is determined from the perspective of the witness. In re Western

Star Trucks US, Inc., 112 S.W.3d 756, 765 (Tex. App.- Eastland 2003). Here it is

patently obvious that none of the categories apply to Mr. Barcroft or Ms. Carrasco,

and equally obvious that international travel is not convenient to either Mr.

Barcroft or Ms. Carrasco. The court may make any order in the interest of justice,

including an order that the discovery not be undertaken at the time or place

specified. TEX. R. CIV. P. 192.6(b)(3). However, the court's order may not

contravene Rule 192.2. Street, 754 S.W.2d at 155.

MOTION TO QUASH OR FOR PROTECTIVE ORDER RELATING TO SUBPOENAS AND DEPOSITION NOTICES ... PAGE 5

173

10. Further with respect to the deposition subpoenas, even if Defendant

could depose Mr. Barcroft or Ms. Carrasco, the place of the depositions is neither

reasonable, nor agreeable. The undersigned has advised counsel for Defendants,

repeatedly, that he does not represent Mr. Barcroft or Ms. Carrasco. 5 The

undersigned did not agree to produce Mr. Barcroft or Ms. Carrasco. Rule 199.4

of the Texas Rules of Civil Procedure states that a party may object to the time and

place designated for a deposition by motion for protective order or by motion to

quash the notice of deposition if filed by the third business day after service of the

notice. This motion is timely made, and Rule 199.4 stays the oral deposition until

this motion can be heard.

THE DUCES TECUM ARE OBJECTIONABLE

11. Although service upon Joshau Unger as trustee, and Danny Unger as

the designated representative of Plaintiff is valid, the duces tecum attached

contains many objectionable requests.

A. Subpoena for Appearance in Court on September 30,2014 for Danny Unger on behalf of Pentex Foundation and Joshua Unger, Trustee.

With respect to requests lB and 1C, they are overly broad, essentially

5 The undersigned did confirm that he was available on October 13-15th, as were Mr. Joshua Unger, Trustee and Danny Unger, the designated representative for Plaintiff. MOTION TO QUASH OR FOR PROTECTIVE ORDER RELATING TO SUBPOENAS AND DEPOSITION NOTICES ... PAGE 6

174

asking him to bring all documents associated with the Plaintiff and Intervenor.

This fails to direct him to any particular class or type of documents. With respect

to Requests D and E, they relate to privileged communications.

B. Subpoena for Appearance at Deposition for Danny Unger on behalf of Pentex.

Categories 2 and 3 are overly broad. This fails to direct him to any

particular class or type of documents. With respect to Requests D and E, they are

privileged communications. Categories 4 and 5 relate to privileged

communications. Categories 6, 7, 8 are invasive of privacy, and tax returns are

generally not discoverable, see Hall v. Lawlis, 907 S.W.2d 493 (Tex. 1995);

Chamberlain v. Cherry, 818 S. W.2d 201 (Tex. App. -Amarillo 1991 ). Categories

12, 13, 14 and 15 are protected to the extend that they post-date anticipation of

litigation and/or are protected pursuant to the "joint defense doctrine" recognized

in TEX. R. EVID. 503(b)(1) and such cases as Ryals v. Canales, 767 S.W.2d 226,

228 (Tex. App.-Dallas 1989, orig. proceeding). Category 14 is further protected

by the attoney/client privilege and work product exemption from discovery.

Category 17 is outside the scope of discovery. Category 20 is vague.

C. Subpoena for Appearance at Deposition for Joshua Unger, Trustee.

Category 4, 5, 6, 7, 8, 9, 10 and 11 are outside the scope of discovery.

MOTION TO QUASH OR FOR PROTECTIVE ORDER RELATING TO SUBPOENAS AND DEPOSITJON NOTICES ... PAGE 7

175

Categories 6 and 18 is relates to privileged communications, including attorney

client communications and matters which are exempt from discovery under the

work product doctrine. Categories 11 and 12 are invasive of privacy, and tax

returns are generally not discoverable, see Hall v. Lawlis, 907 S. W.2d 493 (Tex.

1995); Chamberlain v. Cherry, 818 S.W.2d 201 (Tex. App. -Amarillo 1991).

Categories 16, 17, 18 and 19 are protected to the extend that they post-date

anticipation of litigation and/or are protected pursuant to the "joint defense

doctrine" recognized in TEX. R. Evm. 503(b)(1) and such cases as Ryals v.

Canales, 767 S.W.2d 226, 228 (Tex. App.-Dallas 1989, orig. proceeding).

D. Subpoena for Appearance at Deposition for Albert Barcroft.

Assuming that this subpoena is not quashed in its entirety, the following

requests are objectionable. Categories 5, 6 and 19 invade the Plaintiffs

attorney/client communication privilege. Categories 9 are overly broad, invasive

of privacy, and tax returns are generally not discoverable, see Hall v. Lawlis, 907

S.W.2d 493 (Tex. 1995); Chamberlain v. Cherry, 818 S.W.2d 201 (Tex. App.-

Amarillo 1991). Categories 16, 17, 18, 19, 20, 21 are protected to the extend that

they post-date anticipation of litigation and/or are protected pursuant to the "joint

defense doctrine" recognized in TEX. R. Evm. 503(b)(1) and such cases as Ryals v.

Canales, 767 S.W.2d 226, 228 (Tex. App.-Dallas 1989, orig. proceeding).

MOTION TO QUASH OR FOR PROTECTIVE ORDER RELATING TO SUBPOENAS AND DEPOSITION NOTICES ... PAGE 8

176

-------------------~-----.

Category 24 is outside the scope of discovery. Category 26 is ambiguous and

vague.

REQUEST FOR SANCTIONS

12. As a result of the filing of the subpoenas in support of Defendants'

specious and frivolous motion to show authority and for witnesses that cannot be

produced, the movants have been required to engage counsel to prepare and

present this motion. Movants request that the Court grant they a recovery of their

reasonable and necessary attorneys' fees as a sanction.

WHEREFORE, movants request that the Court quash the subpoeans for Mr.

Barcroft and Mr. Carrasco in their entirety, and grant protection against the

objectionable duces tecum with respect to Joshua Unger, Trustee and Danny

Unger, and issue sanctions as may be appropriate, and other and further relief to

which movants may be entitled.

mitted,

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

MOTION TO QUASH OR FOR PROTECTIVE ORDER RELATING TO SUBPOENAS AND DEPOSITION NOTICES ... PAGE 9

177

CERTIFICATE OF CONFERENCE

Prior to issuance of the subpoenas the undersigned communicated with counsel for Plaintiff regarding this matter, advising that he did not represent Mr. Barcroft or Ms. Carrasco, and would not be able to produce them. The subpoenas followed anyway. Because of the three day rule proscribed by Rule 199.4, this m · fi ented to the Court for resolution.

FIAT

The above and foregoing motion shall be heard by the Court on the _ _ day of , 2014, at o'clock, .m.

JUDGE OR CLERK OF THE COURT

CERTIFICATE OF SERVICE

I do hereby certify that a true and correct copy of the above and foregoing document was served, by email pursuant to agreement compliant with TEX. R.Crv. P. 11, upon Christy L. Lee, Esq., of Law Offices of Christy Lee, P.C., 777 Main Street, Suite 600, Fort Worth, Texas 76102, and to Howard Kirk Gibbs, Pro Se, at 4360 Western Center Blvd., Suite 205, Ft. 13 7, on this September 3, 2014.

MOTION TO QUASH OR FOR PROTECTIVE ORDER RELATING TO SUBPOENAS AND DEPOSITION NOTICES ... PAGE 10

178

08/28/2014 18:10 8073388880 LAW OFFICES OF CHRISTY LEE #0241 P.010/012

PLAINTIFFS EXHIBIT

A

CAUSE No. CV-14-41665

PENTE.x FOUNDATION ) IN TFffi DISTRICT COURT PLAINTIFF, )

)

vs. ) 336m JUDICIAL DISTRICT )

KENNETH VERN G!BBS; AND ) CANDACE GTBSS WALTON; AND ") HOWARD KIRK GIBBS, )

DEFENDANTS. ) FANNIN CoUNTY, TEXAS

THE STATE OF TEXAS Stml:»OENA

TO: Danny Unger, Legal Representative of Pentex Foundation, c/o Scott Smith, 120 South

Crockett Street, Sherman, Texas 75091-0354.

YOU ARE COMMANDED by the State of Texas to appear before the 336m Judicial

District Court, Fannin County. at 101 E. Sam Rayburn Drive, Suite 200, Bonham Texa~ 75418,

on the 30th day of September, 2014, at 8:30 o'clock a.m., to attend and give testimony on

Defendant's Motion to Show Authority.

ENFORCEMENT OF SUBPOENA

Pursuant to Texas Ru1es of Civil Procedure No. 176.8, failure by any person without

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

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

served, and may be punished by fine or confinement, or both.

lNSTRUCTIONS

A. If you object or otherwise decline to respond to any portion of a request,

provide all documents for that portion of the request to which you do not object or decline to

respond.

B. If you object to a request on the grounds that it is too broad (i.e., that it 1'HE STATE OPTnXAS SUBPOENA CAUSE No. CV-14-41665 PENTEXFOUNDATTON ~:GIBBS, ~/J'AL. ·1-

179

08/28/2014 19:10 9073399980 LAW OFFICES OF CHRISTY LEE #0241 P.011/012

calls for both relevant and irrelevant 1nfonnation), provide such documents which are

concededly relevant.

C. If you object to a request on. the grounds that it would constitute an undue

burden, provide such requested documents as can be supplied without undertaking an undue

burden.

D. If you object to any portion of a request because of a claim of privilege,

identify all persons to whom such documents were disclosed, the general nature of such

documents, the nature of the privilege asserted, and the dates of any communications or

documents from which such privilege is asserted. You are further directed to redact and

disclose any portion of such document that is concededly not privileged.

DUCES TECUM

1. You are hereby requested to make available the documents listed below at the above-

mentioned time and place.

A. A true and correct copy of all documents showing that you are the legal

representative ofPentex Foundation.

B. A true and correct copy of all documents that you have which are associated

with GBU Friends and Associates Tru....t_

C. A true and correct copy of all documents associated with your tenure as

Trustee of GBU Friends and Associates Trust.

D. A true and correct copy of cancelled checks you or Pentex Foundation paid to

Scott Smith.

E. A true and correct copy of cancelled checks you or Pentex. Foundation paid to

John Skotnik.

THE STATE OF TEXAS Sl.JB.POENA CAUSE No_ CV-14-41665 PENTEXFOUND.t1TION SIS.. GIBBS, .l!:r AI~ -2-

180

08/28/2014 19:11 9073399980 LAW OFFICES OF CHRISTY LEE #0241 P.012/012

2. The subpoena is prepared and issued for Defendants Kenneth Gibbs and Candace

Walton, by Counsel, in accordance with Rule 176 of the Texas Rules ofCivU ProcedlU'e.

Issued on August 28,2014.

LAW OFFICES OF CHRISTY LEE, P.C.

ATTORNEY FOR DEFENDANTS

'I'J..JE STATB OF TExAS SUBPOENA CAUSE 'NO. CY-14-41665 PENTEX FOUNDA110N VS. GiBBS, ET AL -3-

181

LAW OFFICES OF CHRISTY LEE #0241 P.001/012 l!lf/28/2~14 19:08 9073399980

CAUSE NO. CV-1441665

PENTEXFOUNDATION ) IN Tiffi DISTRICt' COURT PLAINTIFF, )

)

vs. ) 336w JUDICIAL DISTRICT )

KENNETH VERN GIBBS; AND ) CA NDACF. GIBBS WALTON; AND ) HowARDKlRK.Gmss, )

DEFENDANTS. ) FANNIN COUNTY. TEXAS

THE STATE OF TEXAS SUBPOENA TO: Angelli Martha Polanco Carrasco, President, Chairman, and Director of Pentex

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

YOU ARE CO:M1v.f.ANDED by the State of Texas to appear before the 336th Judicial

District Court, Fannin County, at 101 E. Sam Rayburn Drive, Suite 200, Bonham Texas 75418,

on the 30th day of September, 2014, at 8:30 o'clock a.m., to attend and give testimony on

Defendant's Motion to Show Authority.

ENFORCEMENT OF SUBPOENA

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

adequate excuse to obey 1:1. subpoena upon that person may be deemed a contempt of the court

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

served, and may be punished by fine or confinement. or both.

INSTRUCTIONS

A. If you object or otherwise decline to respond to any portion of a request.

provide all documents for that portion of the request to which you do not object or decline to

respond.

THE STATF. OF TEXAS SUBPOENA CAUSE NO. CV-14-41665 PENrEX FOllNOATION liS. GIBB.<;, f..I' 11.L. -1-

182

08/28/2014 19:08 9073399980 LAW OFFICES OF CHRISTY LEE #0241 P.002/012 ._..

B. If you object to a request on the grounds that if is too broad (L~:, that i~

calls for both relevant and irrelevant information), provide such documents which are

concededly relevant.

C. If you object to a request on the grounds that it would constitute an undue

burden. provide such requested documents as can be supplied without undertaking an undue

burden.

D. If you object to any portion of a request because of a claim of privilege,

identify all persons to whom such documents were disclosed, the general nature of such

documents, the nature of the privilege asserted, B.nd the dates of any communications or

documents from which such privilege is asserted. You are further directed to redact and

disclose any portion of such document that is concededly not privileged.

DUCES .TECUM

I. .You are hereby. requested to make available the documents listed below at the abovementioned time and place.

A A true and Correct copy of all P~tex 'F~iuldation incorporation docuinen~·: ..

B. All board meeting minutes associated with hiring John Skotnik. .

C. All board meeting minutes associated with hiring Scott Smith.

. .

· 2. The subpoena is . prepared and issued for Defendants Kenneth Gibbs and .· Cand.ace .. . . ·,.

Walton, by Counsel, in accordance·with Rule 176 of the Texas Rules of Civil Procedure...

THE STATE OF TEXAS SUBPOENA CAUSE No. CV-14-41665 . PF.Nr£X FOUNDATION V.S. GiBBS, ET AL. -2-

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Issued on August 28, 2014.

LAW OFFICES OF CHRISTY LEE, P.C.

Christy L. Lee Texas State Bar No. 24052302 777 Main Street. Suite 600 FortWorth, TX 76102 Office: (817) 504-6075 Fax: (800) 437-7901 clee@.christyleelaw .com

ATIORNEY FOR DEFENDANTS

THE STATE OF 1'ExAs Sllli.POENA CAUSH No. CV-14-41665 PENrM FOUNDATION VS. GIBBS, .b"l"AL. -3-

184

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·..._,;

CAUSE NO. CV-14-41665

PENTEx FOUNDATION ) IN THE DISTRI.CT COT.JRT PLAINTIFF, )

)

vs. ) 336m JU'DlCIAL DISTRICT )

KENNETH VERN GIBBS; AND ) CANDACE GIBBS WALTON; AND ) HowARD KIRK Gmas, )

DEPENDANTS. ) F ANNlN CouNTY, TEXAS

THE STATE OF TEXAS SUBPOENA

TO: Joshua Unger, Trustee of GBU Friends and Associates Trust, c/o Scott Smith~ 120 South

Crockett Street, Shennan, Texas 75091-0354.

YOU ARE COMMANDED by the State of Texas to appear before the 336th Judicial

District Court, Fannin County~ at 101 E. Sam Rayburn Drive, Suite 200, Bon.bam, Texas75418,

on the 301h day of September, 2014, at 8:30 o'clock a.m., to attend and give tel>iim.ony on

Defendant's Motion to Show Authority.

ENFORCEMENT OF SUBPOENA

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

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

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

served. and may be punished by fine or confinement, or both.

INSTRUCTIONS

A. If you object or otheiWise decline to respond to any portion of a request,

pfovidc all documents fbr that portion of the request to which you do not object or dedine to

respond.

B. If you object to a request on the grounds that it is too broad (i.e., that it THE STATE OP TEXAs SUBPOENA CAUSE No. CV-14-41665 PllNTF.XFOUNDAT70NVS. G'liJBS, ET AL, -1-

185

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calls for both relevant and irrelevant information), provide such documents which are

concededly relevant.

C. If you object to a request on the grounds that it would constitute an undue

burden, provide such requested documents as can be supplied without undertaking an undue

burden.

D. If you object to any portion of a request because of a claim of privilege,

identify all persons to whom such documents were disclosed. the general nature of such

docrunents, the nature of the privilege asserted. and the dates of any communications or

documents from which such privilege is asserted. You are further directed to redact and

disclose any portion of such document that is concededly not privileged.

DUCES TECUM

1. You are hereby requested to make available the documents listed below at the above-

mentioned time and place.

A. A true and correct copy of all documents showing that you are the Trustee of

GBU Friends and Associates Trust.

B. A true and correct copy of all documents associated with your tenure as

Trustee of GBU Friends and Associates Trust.

C. A true and correct copy of cancelled checks you or GBU Friends and

Associates Trust paid to Scott Smith.

D. A true and correct copy of the engagement letter GBU Friends and Associates

Tru.t,1 signed with Scott Smith.

2. The subpoena is prepared and issued for Defendants Kenneth Gibbs and Candace

Walton, by Counsel, in accordance with Rule 176 of the Texas Rules of Civil Procedure.

TilE STATE OF ThXAS SUBPOENA CAUSE No. CV-14-41665 PENTEX FOUNDA170N VS. GIBBS, ET A.L. -2-

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Issued on August 28, 2014.

LAW OFFICES OF CHRISTY LEE, P.C.

~--~ Christy L. Lee Texas State BarNo. 24052302 777 Main Street, Suite 600 Fort Worth, TX 76102 Office: (817) 504-6075 Fax: (800) 437-7901 clee@cbristvleclaw.corn

ATTORNEY FOR DEI•'ENDANTS

THE STATI: OF TEXAS SUBPOENA CAUSB No. CV -14-41665 PENTEXFOUNDA110N ~S. GIBBS,. ET AI- -3-

187

-------------------------------

#0241 P.007/012 08/28/2014 19:09 9073399980 LAW OFFICES OF CHRISTY LEE

CAUSE NO. CV-14-41665

PENTEX FoUNDATION ) IN THE DISTRICT COURT PLAINTIFF, )

)

vs. ) 336m. JUDiClAL DISTRICT )

KENNETH VERN GlBBS; AND ) CANDACE GIBBS wALTON; AND ) HOWARD KlRK GIBBS, )

DEFENDANTS. ) FANNIN COUNTY, TEXAS

THE STATE OF TEXAS SUBPOENA TO: Albert Barcroft, c/o Scott Smith, 120 South Crockett Street, Shennan, Texas 75091-0354.

YOU ARE COMMANDED by the State of Texas to appear before the 336th Judicial

Ifu1rict Court, Fannin County, at 101 E. Sam Rayburn Drive, Suite 200, Bonham Texas75418,

on the 30th day of September, 2014, at 8:30 o'clock am .• to attend and give testimony on

Defendant's Motion to Show Authority.

ENFORCEMENT OF SUBPOENA

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

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

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

served, and may be punished by fine or confinement, or both.

INSTRUCTIONS

A. If you object or otherwise decline to respond to any portion of a request,

provide all documents for that portion of the request to which you do not object or decline to

respond.

B. If you object lo a request on the grounds that it is too broad (i.e., that it

calls for both relevant and irrelevant information), provide such documents which are THE STATE OF TExAs S!ffiPOENA CAUSE No. CV-14-41665 PF.Nr£X FOUNDATION V.S. GiBBS, ETA r~ -1-

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concededly relevant.

C. lfyou object to a request on the grounds that it would constitute an undue

burde~ provide such requested documents as can be supplied without undertaking an undue

burden.

D. If you object to any portion of a request because of a claim of privilege,

identify all persons to whom such documents were disclosed, the general nature of such

documents, the nature of the privilege asserted, and the dates of any communications or

documents from which such privilege is asserted. You are further directed to redact and

disclose any portion of such docwnent that is concededly not privileged.

DUCES TEClJM

1. You are hereby requested to make available the documents listed below at the above-

mentioned time and place.

A. A true and correct copy of all Pentex Foundation documents showing your

authority to act as its legal representative.

B. A true and correct copy of all Pentex Royalty Trust documents showing your

authority to act as its legal representative.

C. A true and correct copy of all Renshaw, Inc., documents showing your

authority to act as its legal representative.

D. A true and correct copy of cancelled checks you, Pentex Foundation, Pentex

Royalty Trust, and Renshaw, Inc., paid to John Skotnik.

E. A true and correct copy of cancelled checks you, Pentex Foundation, Pentex

Royalty Trust, and Renshaw, Inc., paid to Scott Smith.

2. The subpoena is prepared and issued for Defendants Kenneth Gibbs and Candace TIIE STATE OF 'TEXAS SUR POENA CAUSE No. CV·14-41665 PENTEX FOUND.dnON VS. GiBBS.. ETA,. -2-

189

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Walton, by Counsel, in accordance with Ru1e 176 of the Texas Rules of CiviJ Procedure.

Issued on August 28, 2014.

LAW OFFICES OF CHRISTY LEE, P.C.

Christy L. Lee Texas State Bar No. 24052302 777 Main Stree~ Suite 600 Fort Worth, TX 76102 Office: (817) 504-6075 Fax: (800) 437-7901 clee@christvleclaw.com

ATTORNEY FOR DEFENDANTS

THfi STATE OF TExAS SUBPOENA CAUSE No. CV -14-41665 PEN1U FOUNDATION VS. (;18RS, ET AL. ~3-

190

EXHIBIT

B

AGREEMENT FOR LEGAL SERVICES Scott Smilh, Attorney At Law, agree to provide legal services to Pcntex Foundution c/o Mario Guilermo Hurtarte AJTivillaga, Managing Director, Legal Affairs in connection with a lawsuit under cause number CV -14-41665 in the 336"' Judicial District Court of Fannin County, Texas.

Scott Smith has the right to cease legal work and keep all funds received for legal services and expenses if Client docs not make payments as requested by Scott Smith, attorney. This agreement docs not necessarily include legal services on appeal. In the event of an appeal is determined to be necessary after trial, n new agreement will be negotiated. Any sums collected from client's opposing party will be credited against Client's obligation, but only when actually received by Scott Smith, attorney.

Client fmthcr agrees to pay all sums when invoiced, and that all sums are due ond payable within ten days of invoice; and Client to pay interest on all past due stuns at the rate of 1.5% pet· month; but in no event to exceed the maximum allowable interest allowed by law.

Client agrees to pay Attorney the usual hourly rate then in effect, which at the present time is $250 per hour and $45.00 per hour for support stan: plus payment of all expenses, as follows: Client agrees to pay nil of the out-ofpocket expenses incurred in the representation, which expenses include any filing or service fees, court costs, subpoena costs, costs of photos, costs of court reporters, costs of reports, costs ofwitnesses, long distance phone charges, travel at the rate of 58.5 cents per mile, deposition transcription charges, postage and photocopy fees, and all other out-ofpocket expenses direc!ly incurred in investigating or litigating this claim. The Client shall keep the Attorney advised of the Client's whereabouts at all times, shall appear on reasonable notice at any and all depositions and cotui appearances, and shall comply with all reasonable requests of the Attomcys in connection with the preparation of presentations of the claim.

In case any one or more of the provisions contained in this agreement shall be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, orunenforcibility shall not afiCct any other provision, and this agreement shall be cons!med as if such invalid, illegal, or unenforceable provision did not exist. This agreement constitutes the only agreement of the parties and supersedes any prior understandings or written or oral agreements between the parties respecting the sub.icct matter.

As a client, you are entitled to make reasonable requests for infonnation from the attorney's office concerning the status of your case. The attorney will make every effort to make sure these reasonable requests are responded to. The client must also realize, however, that time spent on the telephone wilh clients takes away from the time the lawyer and staffhave nvailable to perform legal services for all their clients. In order to balance your need for information with our need for time to work on your case, we have instituted the following phone call policy.

Phone calls will be taken during normal business hours of8:30 a.m. to 5:00p.m. with a one hour break for lunch. If the client leaves a message on a weekend or holiday, be aware that the call may not be returned until the next business day. Fmthermore, in order to protect the personal time oft he attomeys and their families as well as ensure their privacy, this office will not give ont the unlisted home telephone numbers of the attorney's nor will they received any calls at home.

If the client needs to speak with an attorney directly, he will take the call if he is in the office and not with a client or preparing for court. If the attorney is not available, it is important for the client to len\'e ll phone number where he or she can be reached as well as a time the client will be available·· and an alternate time ifthe ottorney cannot reach the client at that time. If the attorney is out of the office for extended periods, he will cnll in pcriodicolly to check for messages arid either call the client back directly or relay a message through the oflice staff. If the client consults with the attorney on the telephone, the client will be billed for the time spent discussing the case in the same way thai a client would be billed if present in the office. Client furthcnmderstands and agrees not to ask the office staff for legal advise, as they are not attorneys licensed to pmctice law in Texas and cannot give legal advice.

Attached hereto is a copy of the Texas Lawyer's Creed. It is understood by the Client and by T. Scott Smith, P.C., that the Texas Lawyer's Creed will be followed during all representation undet·this contract.

NO WARRANTIES OR REPRESENTATIONS AS TO THE OUTCOME OF ANY LITIGATION ORAS TO THE PERFORMANCE OF LEGAL SERVICES BY ATTORNEY HAVE BEEN MADE TO CLIENT, AND CLIENT AGREES AND UNDERSTANDS THAT NO PROMISES OR GUARANTEES CAN BE MADE AS TO THE OUTCOME OF THE REPRESENTATiON OF CLIENT BY ATI'ORNEY.

At the conclusion of Client's litigation onepresentalion, Client is entitled to the contents ofCiient's file except for Attomey's personal notes. If Client chooses to leave all or pari of the file in Attorney's possession, Attorney has the

AGREEMENT FOR LEGAL SERVICE& ... PAGEl

authority to destroy Client's file after two years after the Judgment is signed orrepresentatlon is concluded. By signing thi~ ·agreement, Client agrees with this file retention policy.

If for any reason client deposits money in the A«omey's trust account, it is agreed by Client that the interest eamed in the lawyer's tmstac~ount may be tendered to the Texas Equal Access to Justice Foundation, pursuant to the Interest on Lawyer's Trust Account (JOL TA) Program created by the Supreme Court ofTexos.

Representation shall not commence until such time as a retainer of SI 0,000.00 is deposited with the Attomey.

Client acknowledges that failure to pay sl1all constitute cause for withdrawal of attorney ft·om client's case.

NOTICE TO CLIENTS The State Bar ofTexas investigates anifprosecutes proftssional misconduct committed by Texas at/orneys. Although not eve1y complaint against or dispute with a lawyer involves professional misconduct} the State Bar Office of General Counsel will provide you with information about how to file a complaint.

For more information, please call 1-800-932-1900. This is a toll-fi•ee call. SIGNED AND AGRnED on May 5, 2014.

\ AGREEMENT FOR LEOAk SF.RV!CfiS ... PAGE 2

191 ·,· .

192

THE TEXAS LAWYER'S CREED A MANDATE FOR PROFESSIONALISM

am a lawyer. I am entrusted by the People of Texas to persons, as soon as practicable, when hearings, depositions,

I preserve and improve our legal system. I am licensed by the Supreme Court of'Thxas.l must therefore abide by the Texas Disciplinary Rules of Professional Conduct, but I know that Professionalism requires more than merely avoiding the meetings, conferences or closings are cancelled. • I will agree to reasonable requests for extensions of rime and for waiver of procedural fonnalities, provided legitimate objectives or my client will not be adversely affected. • I will not serve motions or pleadings in any manner that unfairly limit another party's violation of laws and rules. I am committed to this Creed for no other reason than it is right. opportunity to respond. • I will attempt to resol\'e by agreement m)'

obj«:lions to mailers contained in pleadings and discovery requests I. OUR LEGAL SYSTEM, A lawyer owes to the and responses. • I can disagree without being disagreeable. I administration of justice personal dignity, integrity and recognize that effe<;live representation does not require antagonistic independence. A lawyer should always adhere to the highest or obnoxious behavior. I will neither encourage nor knowingly principles of professionalism • I am passionately proud of my permit my client or anyone under my control to do anything which profession. Therefore, "My word is my bond." • I am responsible to would be unethical or improper if done by me. • I will not, without assure that all persons have access to competent representation good cause, attribute bad moti\'es or unetllical conduct to opposing regardless of wealrh or position in life. • I commit myself to an counsel nor bring the prufession into disrepute by unfounded adequate and effective pro bono program • I am obligated to accusations of impropriety. I will avoid disparaging personal educate my clients, the public and other lawyers regarding the spirit remarks or acrimony towards opposing counsel, parties and and letter of this Creed. • I will always be conscious of my duty to witnesses. I will not be influenced by any ill feeling between the judicial system. clients. I will abstain from any allusion to personal peculiarities or idiosyncrasies or opposing counsel. • I will not take advantage, by lJ. LAWYER TO CLIENT. A lawyer owes to a client causing any default or dismissal to be rendered, when I know the allegiance, learning, skill and industry. A lawyer shall employ all identity of an opposing counsel, without ftrst inquiring about that appropriate means to protect and advance the client's legitimate counsel's intenlion to proceed. • I will promptly submit orders to rights, claims, and objectives, Alawyer shall not be deterred by any the Court. I will deliver copies to opposing counsel before or real or imagined fear of judicial disfavor or public unpopularity, contemporaneously with submission to the court. I will promptly nor be influenced by mere self-interest. • I will advise my client of approve the form of orders which accurately reflect the substance the contents of !his Creed when undertaking representation. •I will of the rulings of the Court. • I will not attempt to gain an unfair endeavor to achieve my client's lawful objectives in legal advantage by sending the Court or its staff correspondence or transactions and in litigation as quickly and economically as copies of correspondence. • I will not arbitrarily schedule a possible. • I will be loyal and committed to my client's lawful deposition, Court appearance, or hearing until a good faith effort objectives, but I will not permit thllt loyalty and commitment to has been made to schedule it by agreement. • I will readily stipulate interfere with my duty to provide objective and independent advice. to undisputed facts In order to avoid needless costs or • I will advise my client !hat civility and courtesy are expected and inconvenience for any party. • I will refrain from excessive and are not a sign of weakness. • I will advise my client of proper and abusive discovery. • I will comply with all reasonable discovery expected behavior. • I will treat adverse parties and witnesses with requests. I will not resist discovery requests which are nor fairness and due consideration. Aclient has no right to demand that objectionable. I will not make objections nor give instructions to a I abuse anyone or indulge in any offensive conduct. • I will advise witness for the purpose of delaying or obstructing the discovery my client that we will not pursue conduct which is intended process. I will encourage witnesses to respond to all deposition primarily to harass or drain the financial resources of the opposing questions which are reasonably understandable. I will neither party. • I will advise my client that we will not pursue tactics which encourage nor permit my witness to quibble about words where are intended primarily for delay. • I will advise my client !hat we their meaning is reasonably clear. • I will not seek Court will not pursue any course or action which is wilhout merit. • I will intervention to obtain discovery which is clearly improper and not advise my client that I reserve the right to determine whether to discoverable. • I will not seek sanction or disqualification unless it grant accommodations to opposing counsel in all mailers !hat do is necessary for protection of my client's lawful objectives or is not adversely affect my client's lawful objectives. A client has no fully justified by the circumstances. right to instruct me to refuse reasonable requests made by other counsel. • I will advise my client regarding the availability of IV. LAWYER AND JUDGE, Lawyers and judges owe each mediation, arbitration, and other alternative methods of resolving other respect, diligence, candor, punctuality, and protection against and sellling disputes. unjust and improper criticism and attack. Lawyers and judges are equally responsible to protect the dignity and independence of the Ill. LAWYER TO LAWYER, A lawyer owes to opposing Court and the profession. • I will always recognize that the position counsel, in the conduct of legal transactions and the pursuit or or judge is the symbol of both the judicial system and litigation, courtesy, candor, cooperation, and scrupulous observance administration of justice. I wil! refrain from conduct that degrades of all agreements and mutual understandings. Ill feelings between clients shall not influence a lawyer's conduct, attitude, or demeanor this symbol. • I will conduct myself in court in a professional toward opposing counsel. A lawyer shall not engage in manner and demonstrate my respect for the Court and the law. • I unprofessional conduct in retaliation against other unprofessional will treat counsel, opposing parties, the Court, and members of the conduct. •I will be courteous, civil, and prompt in oral and wriuen Court staff with courtesy and civility. • I will be punctual. • I will communications. • I will not quarrel over matters of form or style, not engage in any conduct which offends the dignity and decorum but I will concentrate on matters of substance. • I will identify for of proceedings. • I will not knowingly misrepresent, other counsel or parties all changes I have made in documents mischaracterize, misquote or miscite facts for authorities to gain an submitted for review. • I will auempt to prepare documents which advantage.• I will respect the rulings of the Court. • I will give the correctly reflect the agreement of the parties. I will not include issues in controversy deliberate, impartial and studied analysis and pro.visions which have not been agreed upon or omit provisions consideration.• I will be considerate of the time constraints and wh1ch are necessary to reflect !he agreement of the parties. • I will pressures imposed upon the Court, Court staff and counsel in notify opposing counsel. and. if appropriate, the Court or other efforts to administer justice and resolve disputes. Tile Sr1preme Cmm nfTexns and the Cm1r1 nf Criminal Appeals hereby promulgate a11d adopt "Tile Texas LAwyer:S Creed. A MCllldate for Frofessianallsm •· OJ at/ached hereto a11d made a part hereaf. /11 Cframbers, this 7111 da)' of Novtmbtr, 1989. The Supremt Court aJTexas.

193

E-FILED TARRANT COUNTY, TEXAS ('-"' 8/11/2014 1:19:55 PM MARY LOUISE GARCIA COUNTY CLERK BY: Sarah Vantassel SCOTT SMITH ATIORNEY AND COUNSELOR AT LAW

E-MAIL: smithlaw@airmail.net 120 SOUTH CROCKETT STREET FACSIMILE: (903) 870-1446 P.O. Box 354 TELEPHONE: (903) 868·8686 SHERMAN, TEXI\S 75091-0354

August 5, 2014

Honorable Pat Ferchill Judge, Tarrant County Probate Court Number Two The Old Courthouse 100 W. Weatherford, Room 220A Fort Worth, Texas 76196

RE: Candace Walton, eta!. v. Beverly Miller, Trustee, et al.; Cause Number 2005-0000126-2-D in the Probate Comt Number Two of Tarrant County, Texas.

Dear Judge Ferchill:

As you may recall, I appeared for a special appearance on behalf ofPentex Foundation on July 31, 2014. In connection therewith, I testified regarding a motion to show my authority to represent Pentex Foundation. At that time, I was unsure of the source of payment of my initial retainer. I have reviewed my records and the· payments were each in the sum of$5,000 from Pentex Royalty Trust and Mr. Albert Barcroft. I am also attaching a copy of a resolution from Pentex Foundation regarding my engagement as their counsel. I thank you for your attention to this matter.

TSSibhs

cc: Christy L. Lee, Esq.; Howard Kirk Gibbs, Pro Se.

• PLAitmFPS ~ ~tarr ~--

194

(...._,

l\'IINUTES OF THE BOARD OF DIRECTORS'

i'I'IEETING OF PENTEX FOUNDATION

A meeting of the Foundation Council ofPENTEX FOUNDATION, organized according to the laws of the Republic of Panama and registered to microjacket twenty nine thousand five hundred nnd thirty six (29536), document one million three hundred fifty four thousand eight hundred ninety three (1354893) of the Mercantile Section of the Public Registry, it was celebrated in the eily of Panama, Republic ofPannnm on the fourth day (4th) of August of the year lwo thousand and fourteen (2014) at 10 o'clock in the morning (10 a.m.).

It was a meeting of nil the known Directors:

Mrs. ANGELLI MARTHA POLANCO CARRASCO, Mr. CARLOS ALliERTO RIVADENEIRA ESCUDERO and FERNANDO ELIAS BARAHONA PEREZ who had prior wnivcd the cnll.

The Chairman was Mrs. ANGELLI MARTHA POLANCO CARRASCO, and the Secretary Mr. CARLOS ALBERTO RIVADENEIRA ESCUDERO, both as holders of said positions.

The quorum hm•ing been confirmed, the Chairman opened the meeting stating that a question has emerged ns to the authority of Mario Guilermo Hurtarte Arrivil!aga, the Managing Director, Legal Afluirs ofPENTEX FOUNDATION, to hire legal counsel in the United States for nftuirs requiring litigation. Specilically, the hiring of one Scott Smith, Allorney at Law, to represent PENTEX FOUNDATION in ongoing litigation irl\'ol\ting PENTEX FOUNDATION in Fannin County, Texas, U.S.A.

Upon motion presented, duly seconded, the following resolution was unanimously approved:

IT IS HEREBY RESOLVED:

That the Board ofPENTEX FOUNDATION verifies that Mario Guilermo Hurtarte Arrivillaga is authorized to hire legal counsel on bchalfofPENTEX FOUNDATION to litigate any ncccssnry legal matters that might arise in !he United States. llnrthcr, it is resolved that Mario Guilcrmo Hurtarte Arrivillaga, as Managing Director, Legal Aflairs ofPENTEX FOUNDATION, was authorized to sign the "AGREEMENT FOR LEGAL SERVICES" hiring Scott Smith, Attorney At Law, to represent and provide legal serl'ices to PENTEX FOUNDATION on May 5, 2014, in Cause Number CV-14-41665 in Fannin County, Texns, U.S.A. Further, by this resolution, PENTEX FOUNDATION confirms Scott Smith, Texas State Bar Number 18688900, as its attorney in Cause Number CV-14-41665 in Fannin County, Texas, U.S.A.; and, that Scott Smith. has represented PENTEX FOUNDATION in Cnuse Number CV-14-4!665 in Fnnnin County, Texas, U.S.A., since May 5, 2014.

By this resolution, it is further resolved that Mario Ouilermo HurtarteArrivillaga, the Mnnaging Director, Legal Affairs ofPENTEX FOUNDATION, is authorized until further notice to make any further necessary changes in legal representation for PENTEX FOUNDATION in any legal proceedings in the United States, and to make any decisions aficcting PENTEX FOUNDATION in any of those legal mailers. The authority gronted I\·!ario Ouilermo Hurtarte Arrivillaga is concurrent with, and does not limit or change, the authority gronted Danny R. Unger through n Limited Power of Attorney ftom PENTEX FOUNDATION in a preceding resolution.

There not being nny other matter to attend the meeting was adjourned at eleven (II :00) a.m. on the above mentioned date.

The President, ANGELLI MARTHA POLANCO CARRASCO,

195

._,.

·, ' • 1111

(

The Secretary, CARLOS ALBERTO RIVADENEJRA ESCUDERO.

The undersigned, Secretary ofthe foundation named PENTEX FOUNDATION by this means cerlifics that the above minutes is a true copy ofits originnl. It agrees with each and every om: of its parts as the one that remains in the Book of Minutes ofthe foundation.

The Secretnry, CARLOS ALBERTO RI,~DENEIRA ESCUDERO.

Dr. Leone/ Antonio Ramirez Montenegro MEDICINA INTERNA YELECTROCARDIOGRAFIA Clinic.~ Medica CONSULTORIO Clinica Casa de Los Almendros Los Almendros s~'ll•<f y mM .. Calle de Atras 9-68 Morales lzabal Tel.: 7823-2060 EMERGENCIAS: 5412-0504 • E-mail:leoram_chey@yatJoo.com

El infrascrito Dr. LEONEL ANTONIO RAMIREZ MONTENEGRO, medico y cirujano colegiado activo numero ocho mil ciento treinta y cuatro, egresado de Ia Universdiad de San Carlos de Guatemala CERTIFICA: Que dentro de los archivos de este consultorio aparece registro del senor ALBERT LYNN BARCROFT. Quien padece HIPERTENSION ARTERIAL, FIBRILACION AURICULAR CRONICA Y OSTEOARTROSIS DEGENERATIVA DE RODILLAS, por lo que no puede viajar debido su codicfon de salud, Ia cual le impide movilizarse por si mismo, asi como tambien representa riesgo para su vida dado que problema cardiovascualar he emperado en los ultimos meses. A solicitud de Ia parte interesada se extiende Ia presente al veintiocho de Agosto del dos mil catorce.

<:-··----~-

· C / .-• . ---~--..___ --0 . .:? C'-<--~y;-;c_,e·l' , . .,- ---

Or. Leonel Ramirez f\J\ontenegJO · ·.

Medicina ln!¢na ( )\ Col. 8,134 \"'-

PLAINTIFF'S

I EXHIBrt

D

I

197

Although an exact interpretation from Spanish to English of a document of this sort is virtually impossible, below is a general interpretation into English of the foregoing medical report and evaluation for your convenience:

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

198

PLAINTIFPS EXHIBIT

E

CAUSE No. CV-14-41665

PENTEX FOUND1\ TION ) IN THE DISTRICT COURT PLAINTIFF, )

)

vs. ) 336 111 .llJDICir\1. DISTRICT )

KENNETH VERN GIBBS~ AND ) CANDACE GIBBS WALTON; AND ) HOWARD KIRK GIBBS, )

DEFENDANTS. ) FANNIN COUNTY, TEXt\S

THE STATE OF TEXAS SUBPOENA DUCI~S TECUM FOR ORAL DI<:POSITION

TO: Danny Unger, Legal Representative for Pentcx Foundation, c/o Scott Smith, 120 South

Crockett Street, Sherman, 'fexas 75091-0354.

YOU ARE COMMANDED by the State of Texas to appear at 120 South Crockett Street.

Sherman, Texas 75091-0354. on the 13th clay or October. 2014. at I 0 o ·clock a.m .. to attend and

give testimony at a deposition.

The deposition will be stenographically recorded by Merit Court Reporters. 307 West 7th

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

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

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

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

ENFORCEMENT OF SUBPOENA

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

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

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

served, and may be punished by fine or confinement, or both.

THE STATE OF TEXAS SUBPOENA CAUSE NO. CV -14-41665 PEN7EX FOUNDATION P:<;. GI/JilS, ET:Jl.. -I-

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

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

date is since the inception of Pentcx Foundation or November I, 2008, whichever is earlier):

I. A true and correct copy of all documents showing that you are the legal representative or Pentcx Foundation.

2. A true and conect copy of' all documents and emails that you have which are associated

\Vith CiBU Friends and Associates ·rrust in regard to monies received or distributed to

anyone or any entity, GBU Friends and Associates Trust's existence, employer

identification number, communications with the Internal Revenue Service. the Contract

for Sale of Contract for Sale of Land. Mineral Rights and Royalties and all other Assets

or Monies Received fi·om the Estate of Bert Hughes Gibbs, Kathryn G. Gibbs, and/or the

Mary L. Houseworth Trust(s) or "The Kathryn Houseworth Gibbs Irrevocable Trust."

(the "CSL"), and Family Settlement Agreement.

3. A true and correct copy of all documents associated with your tenure as Trustee or GBU

Friends and Associates Trust in regards to monies received or distributed to anyone or

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

number, communications with the Internal Revenue Service, the CSL and Family

Settlement Agreement.

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

money transfers, etc.) you or Pentex Foundation paid to Scott Smith.

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

money transfers, etc.) you or Pentcx Foundation paid to John SkoLnik.

TilE STATE OF TEXAS SUBPOENA C:\USE No. CY -14-41665 PENTEX FoUNfJA170N v:S: GII111S. ETA/,. -:!-

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6. A true and correct copy of all bank account information and bank statements in which

Pentex Foundation holds any interest. showing all funds Pentcx Foundation received

from the Estate of Bert Gibbs, GWB Family and Friends Trust, Albert Barcroft, GBU

Friends and Associates Trust, and Pentex Royalty Trust.

7. J\ true and correct c.:opy of all United States federal income tax returns li·mn :wos to

present filed by Pcntcx Foundation.

8. A true and correct copy of all foreign tax returns from 2008 to the present filed by Pentex

Foundation.

9. A true and correct copy of your personal phone records from January l, 20 14, to the

present.

I 0. A true and correct copy of your resume.

11. A true and correct copy of your professional certificates and qualifications to be a legal

representative or an international company.

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

documents, tape recordings, memorandums, etc.) with Albert Barcroft in association with

GWB Family and Friends Trust, Pentcx Foundation, Pcntcx Royalty Trust. CIBU Fricmls

and Associates Trust, and the Estate of Bert Gibbs, since January, L 2013, in regard to

monies received or distributed to anyone or any entity. GBU Friends and Associates

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

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

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

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

TilE STATE OF TEXAS SUBPOENA C,\USE No. CV -14-41 665 P/':,\THX FoUNDATION vs. GJ/JIJS. Cl';lf.. '

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Sharron Cox and Earl Hargrave, concerning GWB Family and Friends Trust, Pentcx

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

January. 1 2013, in regard to monies received or distributed to anyone or any entity. CiBU

Friends and Associates Trust's existence. employer iclcnti fication number.

communications with the Internal Revenue Service. the CSL, Family Setllcmcnt

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

administration of the Estate of Bert Gibbs.

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

documents, tape recordings, memorandums, etc.) with John Skolnik concerning GWB

Family and Friends Trust, Pentex Foundation, C:iBU Friends and Associates Trust, and

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

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

employer identification number, communications with the Internal Revl:nuc Service. the

CSL, Family Settlem~nt Agreement. any distributions of attorney fees from the Estate of

Bert Gibbs, and the administration of the Estate of Bert Gibbs.

15. A true and correct copy of all communications (including such things as emai Is.

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

GWB Family and Friends Trust, Pcntex Foundation. and GBU Friends and ;\ssociatcs

Trust since January. 1 2013, in regard to monies received or distributed to anyone or any

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

communications with the Internal Revenue Service. the CSL. Family St:ttlemcnt

Agreement, any distributions of attorney fees fi·om the Estate of Bert Gibbs, and the

administration of the Estate of' Bert Gibbs.

THE STATE OF TEXAS SUBPOENA CAUSE NO. CV -14-41665 PEN7'£X FOUNDATION VS. GI/JIIS, ET AL. -4-

202

16. A true and correct copy or all payments you received (includes checks, cash, gold, silver.

any other currency, or payment of any other kind) fl·om GWB Family and Friends Trust.

GBU Friends and Associates Trust, and Pcntcx Foundation.

17. A true and correct copy of your medical records associated with the accident in which

you suffered an injury caused by a tree falling on yom head.

18. True and correct copies ofnll drafts ofthe CSL since January 1. 2005.

19. True and correct copies of any and all assignments of the CSL to or from Pentcx

Foundation.

20. A true and correct copy of proof of all legal documents which attest to anyone's legal

representation of Pentex Foundation.

21. A true and correct copy of any documents or emails associated with the transfer of

57.19% of G WB Family and Friends Trust interest in certain oil and gas mineral interests

(held with Trio Consulting and Management, LLC; .IW Operating Company; Devon

Energy; and ConcoPhillips) to GBU Friends and Associates Trust.

22. A true and correct copy of all bank account infonnation ancl bank statements in which

GBU Friends and Associates Trust holds any interest, showing all funds GBU Friends

and Associates Trust received from the Estate of Bert Gibbs; GWB Family and Friends

Trust; Albert Barcroft; Trio Consulting and Management, LLC; JW Operating Company;

Devon Energy; and ConcoPhillips.

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

CounseL in accordance with Rule 176 of the Texas Rules of Civil Procedure.

THE STATE OF TEXAS SUBPOENA CAUSE NO. CV -14-41665 PfA'77i'X F'OUNDA770N f':\'. G/11/!.\~ hTAl.. -5-

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Issued on September, 2. 2014.

LAW OFFICES OF CHRISTY LEE, P.C.

Christy L. Lee Texas State Bm No. 24052302 777 Main Street, Suite 600 Fort Worth, TX 76102 Oflice: (817) 504-6075 Fax: (800) 437-790 I £!ee0>,christvle_elaw.com

ATTORNEY FOR KENNETH GIBBS AND CANDACE WALTON

CERTIFICATE OF SERVICE

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

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

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

Christy L. Lee

THE STATE OF TEXAS SUBPOENA CAUSE NO. CV -14-41665 PENTEX FOUN/JATION VS. GI/JBS, ETAL. -6-

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CAt 1Sr·: No. CV -14-41665

PENTEX FOUNDATION ) lN THE DISTRICT COURT PLAINTIFF, )

)

VS. ) 336111 JUDICIAL DISTRICT )

KENNI:TH VERN GIBBS; AND ) CANDACE GIBBS WALTON; AND ) HowARD KIRK GIBBS, )

DEFENDANTS. ) FANNIN COUNTY. TEX;\S

THE STATE OF TEXAS SUBPOENA DUCES TECUM FOI~ ORAL DEPOSITION

TO: Joshua Unger. Trustee for CJBU Friends and Associates Trust, c/o Scott Smith, 120 South

Crockett Stret:t, Sherman, Texas 75091-0354.

YOU ARE COMMANDED by the State of Texas to appear at 120 South Crockett Street.

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

give testimony at a deposition.

The deposition will be stenographically recorded by Merit Court Reporters. 307 West 7th

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

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

of this cause. The deposition wi II continue from day to day until completed. All counsel and

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

ENFORCEMENTOPSUBPOENA

Pursuant to Texas Rules of Civil Procedure No. 176.H. f'ailurc by any person \Vithout

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

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

served, and may be punished by fine or confinement, or both.

TilE STATE OF TEXAS SUBPOENA CAUSE No. CV -14-41665 P£N71::X FOUNDAl10N VS. CiiiJIJS, E'l'AL -I-

205

DUCES TECUM

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

documents or tangible things in your custody or control as fol!O\vs (if not otherwise noted. the

date is since the inception of GBU Friends anclt\ssociatcs 'frust or January 1, 2013, whichever is

earlier):

I. A true and correct copy of all documents showing that you arc the Trustee for the GBU

Friends and Associates Trust.

2. A true and correct copy of all verswns of the CiBU Friends and Associates Trust

document.

3. A true and correct copy of all documents and emails associated with your tenure as

Trustee of GBU Friends and Associates Trust in regard to monies received or distributed

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

identification number, communications with the Internal Revenue Service, the Contract

for Sale of Contract for Sale of Land, Mineral Rights and Royalties and all other Assets

or Monies Received from the Estate of Bert Hughes Gibbs, Kathryn G. Gibbs, and/or the

Mary L. Houseworth Trust(s) or "The Kathryn llouseworth Gibbs lrrcvocablc Trust:·

(the "CSL"), Family Settlement Agreement and oil and gas mineral rights (including

direct communication with Trio Consulting and Management, LLC, JW Operating

Company; Devon Energy. and ConcoPhillips).

4. A true and correct copy or all documents showing the members or GBU Friends and

Associates Trust. each member's interest. and the total amount each member has received

in distributions since GBU Friends and Associates Trust inception.

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

THE STATE OF TEXAS SUBPOENA C:\USE NO. C:V -I <1-41665 PENT/iX FOU."iDATION VS. Gill/IS. ETAL. -2-

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money transfers, etc.) you or GBU Friends and Associates Trust paid to Scott Smith.

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

money transfers. etc.) you or (113U Friends and As~ociatcs Trust paid to John Skotnik.

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

money transfers, etc.) you or (JBU Friends and Associal~s Trust paid to Beverly Miller.

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

money transfers, etc.) you or GBU Friends and Associates Trust paid to Albert or

Pamela Barcroft, or anyone else in their immediate family.

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

money transfers, etc.) you or GBU Friends and Associates Trust paid to lloward Kirk

Gibbs or to anyone else in his immediate f'amily.

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

money transfers, etc.) you or CJBU Friends and Associates Trust paid to any member of

CJBU Friends and Associates Trust.

11. A true and correct copy of all bank account information and bank statements in which

GBU Friends and Associates ·rrust holds any interest, showing all funds GBU Friends

and Associates Trust received from the Estate of Bert Gibbs; GWB Family and Friends

Trust; Albert Barcrofl; Trio Consulting and Management. LLC; JW Operating Company;

Devon Energy; and ConcoPhillips.

12. A true and con·cct copy of all United States federal income tax returns from 2012 to the

present 11led by GBU Friends and Associates Trust.

13. A true and correct copy of your personal phone records from .January 1, 2013, to the

present.

TilE STATE OF TEXAS SUIWOENt\ Ci\liSI' No. CV -14-41665 Pl~"NTEX FOUND:I"J10N IS G/f111S, r~TAI .. -.~·

207

14. A true and correct copy of your resume.

15. A true and correct copy of your professional certificates and qualifications.

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

documents, tape recordings. memorandums, etc.) \Vith Albert Barcroft in association with

GWB Family and Friends Trust, Pcntex Foundation, Pentex Royalty Trust. GBU Friends

and Associates Trust, ami the Estate of Bert Gibbs, since January, I, 2013 in regard to

monies received or distributed to anyone or any entity. GBU Friends and Associates

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

Revenue Service, the CSL, Family Selllement Agreement, any distributions of attorney

fees from the Estate of Bert Gibbs, and the administration of the Estate of Bert Gibbs.

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

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

Sharron Cox and Earl Hargrave, concerning UWB Family and Friends ·rrust, Pentcx

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

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

Friends and Associates Trust's existence, employer identitication number.

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

Agreement. any distributions of attorney fees li·om the Estate of Bert Gibbs. and the

administration of the Estate of Bert Gibbs.

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

documents, tape recordings, memorandums, etc.) with John Skotnik concerning GWB

Family and Friends Trust. Pentcx Foundation. CJBU Friends and Associates Trust, and

the Estate of Bert Gibbs since January, I 2008, in regard Lo monies r~ccived or

THE STATE OF TEXAS SUBPOEN1\ C.<\ liSE NO. CV -14-41665 PENTEX FOIJNDATJON VS. GIBBS, ETA!.. -4-

208

distributed to anyone or any entity, CJBU Friends and Associates ·rrust's existence.

employer identification number. communications with the Internal Revenue Service. the

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

Bert Gibbs, and the administration ofthe Estate or Bert Gibbs.

19. A true and cm·rect copy of all communications (including such things as emails.

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

GWB Family and Friends Trust, Pentex Foundation, and GBlJ Friends and Associates

Trust since January, I 2013, in regard to monies received or distributed to anyone or any

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

communications with the Internal Revenue Service, the CSL Family Settlement

Agreement, any distributions of attorney Ices from the Estate or Ben Gibbs. and the

administration of the Estate of Bert Gibbs.

20. A true and correct copy of all payments you received (includes checks, cash, gold, silver.

any other currency, or payment of any other kind) from GWB Family and Friends Trust

GBU Friends and Associates Trust, and Pcntex Foundation.

21. A tnte and correct copy of proof of all legal document::-> which attest to anyone's legal

representation of Pcntex Foundation.

22. True and correct copies of all clraftq of the CSL since January L 2005.

23. A true and copy of any assignment of any interest in the CSL from or to CiBU Friends

and Associates Trust.

24. A true and correct copy of any documents or cmails associated with the transfer or 57.19% of GWB Family and Friends Trust interest in certain oil and gas mineral interests

(held with Trio Consulting and Management, LLC; JW Operating Company; Devon

TilE STilT!; OF TEXAS SUBPOENA C.!\ US!' No. CY -14-4 1665 PL-:NTI>X FOUNDATION f'S. G/IWS, !:'TAL -5-

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Energy; and ConcoPhillips) to GBLJ Friends and Associates Trust.

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

Counsel, in accordance with Rule 176 of the Texas Rules of Civil Procedure.

Issued on September, 2, 2014.

LAW OFFICES OF CHRISTY LEE::, P.C.

-~----··---··········""'"""" Christy L Lee Texas State Bar No. 24052302 777 Main Street, Suite 600 Fort Worth, 'IX 76102 OfTicc: (817) 504-6075 Fax: (800) 437-7901 clcerZV.c llJ.:i.stv Ice Ia w. CO!l1

ATTORNEY FOR KENNE'Tll CIIBBS AND CANDACE WALTON

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy ofthe above and foregoing document was delivered, pursuant to Texas Rules of Civil Procedure and Rule 11 Agreement. to the following parties on this 2nd day of September, 2014:

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

Howard Kirk Gibbs Via mail and email 9929 Crawford Farm Drive F011 Worth, TX 76244

j

/

-~~:,-,-.-

Chnsty L. Lee

THE STATE OF TEXAS SUBPOENA CAUSE No. CV -14-41665 P ENTEX FOUNDA T!ON 1-:Y. G 1/lfl,\; HT AI.. -6-

210

CAusE No. cv -14-41665 PENTEX FOUNDATION ) fN THE DISTRICT COURT PLAINTIFF. )

)

VS. ) 336'1i JUDICIAL DISTRICT )

KENNETH VERN GIBBS; AND ) CANDACE GIBBS WALTON; AND ) llOWARD KIRK GIBBS, )

DEFENDANTS. ) FANNIN COUNTY. TEXAS

THE STATE OF TEXAS SUBPOENA DUCES TECUM IcOR ORAL DEPOSITION

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

120 South Crockett Street. Sherman. ·rexns 75091-0354.

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

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

give testimony at a deposition. Albert Barcroll is be deposed to his personal knowledge of the

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

(2) drafting of the GWB Family and Friends Trust, (3) the Contract for Sale of Contract !'or Sale

of Land, Mineral Rights and Royalties and all other Assets or Monies Received tl·om the Estate

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

Kathryn Houseworth Gibbs Irrevocable Trust." (the "CSL") (4) signing of the Family Settlement

Agreement, and (5) Pcntex Royalty Trust !edcral Lax liens.

The deposition will be stenographically recorded by tv1erit Court Reporters. 307 \Vest 7th

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

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

of this cause. 'fhe deposition will conti nuc from day to day until completed. All counsel and

parties are invited to attend and cross-examine as they may deem proper. THE STATE OF TEXt\S SUlli'OENA CAUSE No. CV -I •1-41665 f>ENTEX FouND.n'foN 1·:\". GmtJ5; f.TM, -1-

211

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

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

ii'om which the subpoena is issued or a district court in the county in which the subpoena is

served. and may be punished by fine or confinement, or both.

pun:s rr~:cuM_ YOU ARE FURTHER COMMANDED to produce and permit inspection and copying of

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

date is since the inception of Pentcx Foundation, or November I. 2008, whichever is earlier):

I. A tn1e and correct copy of all documents sho\ving that you had legal authority to act as

legal representative of Pcntex Foundation.

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

legal representative of Pcntex Royalty Trust.

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

legal representative of Renshaw, Inc.

4. A true and correct copy ol' all emails and documents in ·which you corresponded with the

Estate of Bert Gibbs concerning the distribution of attorney fees associated with Kenneth

Gibbs, Candace Walton. and Howard Kirk Gibbs.

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

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

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

interest, paid to Scott Smith.

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

TilE STATE OF TEX/1S SUBI'OEN;\ C'\USE No. CY-l4-4t665 PI:NH:X FOUNDATION I'S. Glll/JS, ETAL. -2-

212

mont~Y transfers, etc.) fi'om you, Pentcx Royalty Trust, Pentex Foundation, Renshaw.

Inc., CiBU Friends and Associates ·rrust, or any other entity in which you have an

interest, paid to .John Skotnik.

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

money transfers, etc.) you. Pcntex Royalty Trust, Pentex Foundation. Renshaw, Inc ..

G BU Friends and Associates Trust. or any other entity in which you have an inll.:rcst.

paid to Beverly Miller.

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

money transfers, etc.) you or Pcntcx Foundation received thJin GWB Family and Friends

Trust.

9. A true and correct copy of all your United States federal income tax returns t'rom 2008 to

present filed by you.

I 0. A true and correct copy of all legal rulings in any lawsuit in which you have been a party

since January 1. 2005.

11. A true and cOITcct copies of Pentex Royalty Trust document.

12. A true and correct copies or United States !cderal income tax returns from 2008 to

present filed by Pcntex Royalty Trust.

13. A true and correct copy or your personal phone records from January 1, 2013, to the

present

14. A true and correct copy of your resume.

15. A true and correct copy of your proCessional ccrtilieates and qualifications to be a kgal

representative or an international company.

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

THE STi\TE 01' TEXAS SULWOENA Ci\lJSENo. CV-14-41665 PEXTC\' FOUXIHI'JO.V r·s. Gill/IS, ET.II.. .} ..

213

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

GWB Family and Friends Trust, Pcntex Foundation, Pentex Royally Trust, GBU Friends

and Associates Tmst, and the Estate of Bert Gibbs, since January, l. 20 I 3, in regard to

monies received or distributed to anyone or any entity. GBU Friends and Associates

Trust's existence. employer identi lication number. communications \Vith the Internal

Revenue Service, the CSL, Family Settlement Agreement, any distributions of attorney

fees from the Estate of Bert Gibbs, and the administration of the Estate of Bert Gibbs.

I7. A true and correct copy of all communication (including such things as cmails.

documents. tape recordings, memorandums, etc.) with Beverly !Vlillcr. and her attorneys

Sharron Cox and Earl Hargrave, concerning GWB Family and Friends Trust, Pentex

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

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

Friends and Associates Trust existence. employer identitication number, communications

with the Internal Revenue Service. the CSI., Family Settlement Agreement. any

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

Estate ofBet1 Gibbs.

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

documents, tape recordings, memorandums, etc.) with John Skotnik concerning GWB

Family and Friends Trust. Pentex Foundation. GBU Friends and Associates Trust. and

the Estate of Bert Gibbs since January, l 2008, in regard to monies received or

distributed to anyone or any entity, CiBU Friends nnd Associutcs Trust's existence.

employer identification number, communications w·ith the Internal Revenue Service, the

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

TilE STATE OF TEX1\S SUBPOENA C t\\JSE No. CV -14-41665 PE.VT£X F<JUND:!TION vs. GWFJS, hTAI .. -tl-

214

Bert Gibbs, and the administration or the Estate of Bert Gibbs.

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

documents. tape recordings, memorandums. etc.) with Hovvard Kirk Gibbs concerning

GWB Family and Friends Trust, Pcntcx Foundation. and CJBU Friends and Associatt:s

Trust since January, 1 2008, in regards to monies rcccivccl or distributed to anyone or any

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

communications with the Internal Revenue Service. the CSL Family Settlement

Agreement, any distributions of attorney Ices from the Estate of Bert Gibbs, and the

administration of the Estate of Bert Gibbs.

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

documents. tape ret:ordings. memorandums. etc.) with Earl llargrave concerning th~

Estate of Bert Gibbs, including the administration of the estate and distribution or attorney fees since .Tunc l, 2014. in regard to monies received or distributed to anyone or

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

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

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

administration ofthe Estate of Bert Gibbs.

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

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

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

distribution of attorney fees since .January, I 2008.

22. True and correct copies ol' all dratts or the GWB Family and Friends Trust. 23. True and correct copies of all drafts of GBU Friends and Associates Trust.

TllE STATE OF TEXAS SUBPOENA CAliSE No. cv -14-41665 PliNTEX FOUNDAl'ION I'S. GI/JfJS, ETA/•. -5·

215

24. A true and correct copy of any articles, books, blogs, or any communications in which

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

avoiding participation in lawsuits.

25. True and correct copies of all drafts of the CSL since .January J. 2005.

26. A true and correct copy of proor of all legal documents in your possession which attest

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

Friends Trust and to the Estate of Bert Hughes Gibbs.

The subpoena is prepared and issued f(lr Defendants Kenneth Gibbs and Candace Walton, by

Counsel. in accordance with Rule 17G of the Texas Rules of Civil Procedure

Issued on September, 2, 2014.

LAW OFFICES OF CIIRIST'Y LEI:. P.C.

_.,..... .,---··-~~-----~-------·······--~-~-------------------·-··-~ ..----. Christy L. L,cc Texas State Bar No. 24052302 777 Main Street, Suite 600 Fort Worth, TX 761 02 Office: (817) 504-6075 Fax: (800) 417-7901 clceu.{kuristykelll_w .c_gm

ATTORNEY FOR KENNETH GTBBS AND CANDACE WALTON

CERTIFICATE OF SEHVJCE

I hereby certify that a true and correct copy of the above and f<.m:g.oing document was delivered. pursuant to Texas Rules of Civil Procedure and Hu!r..: 11 Agreement. to the l'ollov.ing parties on this 2nd day ofScptember, 2014:

Pentex Foundation ami Via fax and email GBU Friends and Associates Trust c/o Scott Smith, Attorney of Record THE STATE OF TEXAS SUBPOEN,\ C!\l1Sl' No. CV-1 4-.J 1665 Pt:Nrrx fr!UNOATJON 1:'1. Gums. J:L·11.. -6-

216

120 South Crockett Street Sherman, TX 75091-0354

I-lt1\vard Kirk Gibbs Via mai I and email 9929 Crawford Fam1 Drive Fort Worth. TX 76244

Christy L. Lee

TilE STATE OF TEXAS SUBPOENA CAUSE No. CV -14-41665 f't::NTEX FOUNDATION VS. G/JJHS, ETA!.. -7-

217

•

CAUSE No. CV -14-41 ()65

PENTEX FOUNDATION ) IN THE DISTRICT COURT PLAINTIFF, )

)

vs. ) 336m JUDICIAL DISTRICT )

KENNETH Vr~RN GIBBS; AND ) CANDACE GIBBS WALTON; AND ) HOWARD KIRK GIBBS, )

DEFENDANTS. ) FANNIN COUNTY. TEXAS

THE STATE OF TEXAS SUBPOENA DUCJ~S TECUM FOR ORAL DEt>OSlTION

TO: Angelli Martha Polanco Carrasco. President. Chairman. and Din:ctor or Pcntcx Foundation

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

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

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

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

knowledge of the following: ( 1) the incorporation of Pentcx Foundation, (2) daily activities or

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

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

against Kenneth Gibbs and Candace Gibbs in Fannin County. and (5) Albert Barcrotrs and

Danny Unger's legal authority to act on Pentcx Foundation's behalf

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

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

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

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

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

Till: ST/\TE OF TEXAS Sllllf'OI 'NA C AI!SI' No. CV -14-·1166 .'i PloNTEX /:'OUNDATIO.V JS. 0'111/JS, UAI.. -I-

218

. . .

ENFORCEMENT OF SUBPOENA

Pursuant to ·rexas Rules of Civil Procedure No. 176.8. failure by any person without

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

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

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

DUCES TECUM

YOU ARE FURTHER COM1v1ANDED to produce and permit inspection and copymg or

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

date is since the inception of Pcntcx Foundation, November I, 2008):

1. A true and correct copy or all incorporation paperwork and annual board meeting minutes for Pcntex Foundation.

2. A true and correct copy of your n.:sume.

3. A true and correct copy oC your professional certificates and qualifications to be a

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

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

legal authot·ity to act on Pentcx Foundation's behalf.

5. True and correct copies of all dralts of the Contract for Sale of Land. Mineral Rights and

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

Kathryn G. Gibbs, and/or the Mnry L. Houseworth Trust(s) or "The Kathryn Houseworth

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

6. True and correct copies of the assignments of the CSL to and fl·om Pcntcx Foundation.

TilE Sl'/1 TE OF TEXAS SUBPOENA CAUSE No. CV-14-41665 PENTEX FOUNDtiTfON VS. Gum.~: E"f'Al.. -2-

219

. . .

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

Counsel, in accordance with Rule 176 of the Texas Rules of Civil Procedure.

Issued on September, 2. 2014.

LAW OFFICES OF CIIRJS'fY LEE, P.C.

/l /] (.r//tL~/ . . _'=:'~:-=q~-·--

Christy L. Lee -· Texas State Bar No. 24052302 777 Main Street. Suite 600 Fort Worth, TX 76102 Office: (817) 504-6075 Fax: (800) 43 7-7901 ~lcc@chrisl v lee law.com

ATTORNEY FOR KENNETH GIBBS AND CAN!MCE WALTON

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing document was delivered. pursuant to Texas Rules of Civil Procedure and Rule 11 Agreement, to the l()llowing parties on this 2nd clay of September. 20 l4:

Pentex Foundation mul Via rax and emai I GBU Friends and Associates Trust c/o Scott Smith, Attorney of Record 120 South Crockett Street Sherman, TX 75091-0354

Howard Kirk Gibbs Via mail and email 9929 Crawford Farm Drive Fort Worth, ·rx 76244

- (2,~- Christy L. Lee

TilE STATE OF TEXAS SUBPOENA CAUSE NO. CV -14·41665 __.,,_ PENTEX FOUNDA'f10N VS. Gmns, ITA/..

220

; ,., .

PLAINTIFPS EXHIBIT

F

Statement Given Under Penalty of Perjury

I, Albert lynn Barcroft, being born on August 20, 1946 in Rotan, Texas, give the following statement under penalty of perjury under the laws of the United States of America.

I am a resident of Guatemala, Central America, and have resided here for more than five (5) years without interruption. I am aware that I have been asked to attend a hearing and other legal proceedings in the United States. I hereby certify and affirm the following for the record:

1. I am not an employee of PENTEX FOUNDATION;

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

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

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

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

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

I hereby certify under penalty of perjury under the laws ofthe United States of America that the foregoing is true and correct.

Further, I certify under penalty ofperjury under the prevailing laws of the State of Texas that the statements in this document are true and correct, and not intended to mislead.

Executed this 3rd day of September, 2014, in San Marcos, lzabal, Guatemala, Central America.

y

Agent/Legal Representative PENTEX FOUNDATION

221

,.

NO. CV-14-41665

PENTEX FOUNDATION, § IN THE DISTRICT COURT·-OF .- __<- ,

FANNINCOU~•\ ,,\\:~ Plaintiff § § v. § § '(") (C .

KENNETH VERN GIBBS, CANDACE § ..., \.......j -~·;·.u' ";q,.,.

,~')

GIBBS WALTON and HOWARD KIRK GIBBS, Defendants § § 336'h JUDICIAL DISTRI€T

s

RESPONSE TO MOTION TO TRANSFER VENUE

TO THE HONORABLE JUDGE OF SAID COURT:

COME NOW, Pentex Foundation, Plaintiff, and Joshua Unger, Trustee of

the GBU Friends and Associates Trust, Intervenor, in the above entitled and

numbered cause, file this Response to the Motion to Transfer Venue, and in

support of the order shows:

1. Venue is proper in Fannin County, Texas. This case concerns a

contract entered into between the defendants and the predecessor in interest to

Plaintiff and Intervenor. A true and correct copy of that contract is attached hereto

as Plaintiffs Exhibit "A". It's authenticity is not in dispute} This is a major

transaction as defined by law. Paragraph 4 of the contract references a buyout

provision of $5,000,000.

Attached hereto as Plaintiffs Exhibit "B" is a copy of a portion of the Response to a Request for Admissions, by which the Contract is acknowledged in Response to Request for Admission number 1. RESPONSE TO MOTION TO TRANSFER VENUE ,. PAGE 1

222

2. Importantly the Contract addressed venue in a very direct and forceful

manner in paragraph 9:

Notwithstanding any other provisions of the law, it is expressly agreed that this contract shall be performable only in Fannin County, Texas; and, any dispute(s) will be resolved in the Courts of Fannin County, Texas.

(Emphasis original).

3. Contractual venue provisions are mandatory and enforceable. TEX.

CIV. PRAC. & REM. CODE§ 15.020 states that contractual venue selection clauses

may be enforceable in cases involving "major transactions" Shamoun & Norman,

LLP v. Yarto Intern., 398 S.W.3d 272, 293 (Tex. App.- Corpus Christi 2012) For

purposes of this provision, a "major transaction" is a transaction evidenced by a

written agreement under which a person pays or receives, or is obligated to pay or

entitled to receive, consideration with an aggregate stated value equal to or greater

than one million.

4. Generally, an action arising from a major transaction must be brought

in a particular county if the party against whom the action is brought has agreed in

writing that a suit arising from the transaction may be brought in that county. TEX.

CIV. PRAC. & REM. CODE§ 15.020(b). Notwithstanding any other venue

provision, an action arising from a major transaction may not be brought in a

county if (1) the party bringing the action has agreed in writing that an action RESPONSE TO MOTION TO TRANSFER VENUE ... PAGE 2

223

..._,.

arising from the transaction may not be brought in that county, and the action may

be brought in another Texas county or in another jurisdiction; or (2) the party

bringing the action has agreed in writing that an action arising from the transaction

must be brought in another Texas county or in another jurisdiction, and the action

may be brought in that other county, under this "major transaction" provision or

otherwise, or in the other jurisdiction. TEX. CIV. PRAC. & REM. CODE§ 15.020.

Section 15.020 is one ofthe mandatory venue provisions contained in chapter 15

of the Civil Practice and Remedies Code and is therefore enforceable by

mandamus. Tex. Civ. Prac. & Rem. Code§ 15.0642; Shamoun, 398 S.W.3d

293-294.

WHEREFORE, Pentex Foundation, Plaintiff, and Joshua Unger, Trustee of

the GBU Friends and Associates Trust, Intervenor request that the Court deny the

motion to transfer venue, and other and further relief to which movants may be

entitled.

State Bar Number I 8688900 120 South Crockett Street P.O. Box 354 Sherman, Texas 75091-0354 e-mail smithlaw@airmail.net Facsimile (903) 870-1446 Telephone (903) 868-8686

RESPONSE TO MOTION TO TRANSFER VENUE ... PAGE 3

224

CERTIFICATE OF SERVICE

I do hereby certify that a true and correct copy of the above and foregoing document was served, by certified mail, return receipt requested number 7009 2250 0000 2311 4187 toChristy L. Lee, Esq., of Law Offices of Christy Lee, P.C., 777 Main Street, Suite 600, Fort Worth, Texas 76102, and to Howard Kirk Gibbs, ProSe, at 4360 Western Center Blvd., S · t. orth, Texas 76137, on this the 3'd day of September, 2014.

RESPONSE TO MOTION TO TRANSFER VENUE ... PAGE 4

225

o.nton Coun11 Cynth,_ Mitchell County Ctltftc o.nton, TX 71201

h11Crumtftt Numbtr: 200U14U AI Reconitcl On: Miry 24, 2001 Mlec <hntnll ' " Ooc PaftioM; 01811 KI!NNITH VERH BIHebM P•a-: t To Hum'* of P-cJM: I Commtnl:

•• E)(amlfttd lnd Chai'Ofd H FoiOwl: ..

•, .. _ _ THIS PAGE IS PART OF THE INSTRUMENT .........."'"

A,~y D<O'o>tiOn '*•In wt'odl -.ell h Sa• RenUII 0< 11• r;J lht OMCfll)t(l REAl PROPERTY ~ al CIOIO< 01 rae. 11 nvtlo:l- ..-b(;Nbllo ~ ~ '""

Fne lnl'onnatlon: RKotd and R.wtn To:

~~ Numbef ~I.U3 Reeetpt NUI'Iltlef I i6064 Al BARCFtOFT Recorded DalaiTlme May 2-4. 200S 11 4-4A PO BOX 1&8 TRENTON TX 7~90 U1611 S'*'<ln J Morna - Caah Sto~~~on 1

THE STATE Of' TEXAS l ,_ __, OF COUNTY __ DENTON ___ t K.JIO•• ....... - . _ , . . , ... _ _ ..-.-.--Nt~ .......- -.. -~ ,_ c,.,...,t CountyCiolk O.nton County. Texas

226

Conlract for Sale of Land, Mineral Rights and Royallles, and all other Assets or Monies Received from tbe Est ale of Bert Hughes Gibbs, Kathryn G. Gibbs, and/or the Mary 1.. Houseworth Trusl(s) or "Tbe Kathryn llgysworlh Gibbs Irrevocable Trust"

This agreement between Albert lynn Rarcron, hereinafter "Barcroft", and Kenneth Vem G1bbs, Candace Gibbs Walton. and Howard Kirk G1bbs, hcreinallcr collcclively also ..Gibbs". is a contract for sale of thil1)' percent 30% of all land, mineral rlgbts, royalties, aod aoy otber monies or assets wbicll Gibbs, or any of the three mdividuals referred to collectively as "Gtbbs" m this agreement, rece1ves, or is due. from this date forward, either collectively or indi\'idually, as a result of any inheritance or estate proceeds, or any other Jlroperty assels received from any lrust(sJ or transfers from Ben Hughes Gibbs, Mary L. Houseworth, andtor Ka,hryn G. Gibbs at any time, past, present. or future; includmg, but not limited to, the following:

a) All proceeds from the Estate of Bert Hughes Gibbs. andtor,

b) AIIIJI'operty ami/or assets of any kind which are received a..~:~ a result of any past or future transference from Bert Hughes Gibbs, Kathl)11 G. Gibbs, or any 'rust to which Gibbs, or an)' or the indl\'iduals referred to collecllv~ly as "Gibbs" m this agrccmenl. arc beneficiary: andJor.

c) All inheritance of any kind and in any fonn by Gibbs, or any of the mdividuals referred to collcetivcly us "Gihhs" in this a~rcemcnt; andior;

d) All proceeds frllm any lawsu1t which currcmly c:x1sts, or may ansc, because of, or m connectton with. the rt:latJonship(s) with Den Hughe.\ Gibbs, Kathryn G. Gibbs, Kip Hughes Gibbs, Sandra Faye Gibb~. "The Mary L. Houseworth lrrt:vocable Trust"', "The Kathryn Houseworth Gibbs hrevoc:able Trust'", and any other trust(s) to wh1ch Gibbs arc bclli:Jiciary(ics) or trustee(s) 10 any form; and/or.

c) All propeny and!or asst!ts which mny h:wc h!!en prevmusly passed to them by Dcrt Hughes UillbS, Kathryn G. Gibbs. "The Mary L. Houseworth !rrcvocablc Trust", and/or "The Kathryn Huusev.orth Gibbs Irrevocable Trust''; and/or,

I) All other property and:'or asset:> passed to Gibbs. or any of the indi\·iduals referred to collecuvely us "Gibbs" in this agreement, li·om any source involving Ben Hughes G1bbs. Kathryn G. Uihhs, "'The Kathryn Houseworth Gibbs Irrevocable (:<lnlt~~• fot S1l•· <II L•nd. Mmcr~l R1gh1<. Roplrtc< and Olhet Au~t' •nd•()r Mnn•c< 1 lmllalsol ,til J>lnl~• dA. ~ UIJ./ J5,.!k_ "'tJ' ~

227

Tntst", andlor "The Kathryn Houseworth Gibbs Irrevocable Trust"; or, any other lrusl(s) or busmess orgamzalion(s) of any kind, which might be uncovered or discovered in the future; and/or.

g) All propeny and/or other assets in any trust or former trust; and, any property or other assets in any corporation, limited liability company. partnetship(s}. sole propnetorship{s), or any other business organization of any kind in which one or more of the Gibbs are owners, trustee(s) or bendictiU')'(tes).

h.) Specifically exempted from this agreement are any properties and/or other assets which are currently under the full control of Gibbs. or any of the individuals referred to collccti\·ely as "Gibbs" Ill lhts agreement; provided, however. thai if an)• legal work IS required to aid in the collection of said assets. or the sale or control of said property, then said property or other assets shall be subject to the teJIDs, conditions. and considerations set forth within this agreement as part of the property amllor assets listed above. and shall have no exemption to the terms ;md considerations of this agreement. Also exempted from this agreement are any peNonal items that were passed to Gibbs from their father, which were not included m the divorce d1stnbution between their mother and father.

This sale of 30% of all land~ properly and othu asset5 described herein above shall he governed by the following terms, condition~ and tonslder.Uons:

I Gibbs, or :.my of the indivir.luals referred to collectively as. "Gibbs'' in this agreement, shall give their/his/her full cooperation to all efforts by Barcrof'\ to collect uny of the funds referred to 1n thts agreement Said cooperation shull include, but not be hmitc:d to, providing necessary tnfonnation and documentatton. being available to gtve testimony. and givmg full support to the overall effon of collecting funds and assets from the sources s1at-:d herein.

2. An)' pany hereto shall ha~·e the ri~lu to order a complete mventory of all proper1y and other assets described herem at an> time, and all panics agree to prov1de full cooperation to such an effort. Any co:~ts shall be bom by the party rcqucstmg the mvenlory.

Cunnur for S•lc llfWnd. Mrncr•l Rrghh. 2 R1.1y~llln ~nd Other A•-wls andfo1 Monic\

228

3. As full consideration, Barcroft agrees to provide, or has provided, the following:

a) Barcrofi has paid lo Gibbs a total of twenty-one (21) silver dollars minted by lhc United Stales Mmt, photocopy of sa1d coms anached·hereto as Exhibit "A". and mcorporatcd herein for all purposes as real consideration under this agreemt:nt, and Gibbs hereby acknowledges receipt of same with this ~igning; and,

b) Barcroft will pr<.IV!de his services, knowledge and best efforts in the pursuit of all available funds, propeny, and/or other assets from the sourct!l> stated herein; and,

c) Barcrofi, at hts expense, will prov1dc legal counsel by acquiring a licensed anomey for any reasonable and prudent actions necessary to the collecting of the funds from the sources stated herein; however, should Gibhs, or any of the indiVidual Gibbs, feel that the1r/lns/her int~rests are not properly served by the allomey Barcrol\ provides, that party wtll be responsible for the legal fees of any other anomcy{s) hired by Gibhs, or any indh·idual Gibbs, to protect their/his/her indivtdual interests. In that event, it Is agreed by all parties hereto that the attorney hired by Barcroft w•ll represent only Barcroft in all future action(s). Funhennorc. '' 1s specifically agtet.'\1 that satd anomey hired by Barcroft will represent only Rarcroft shuulc.J a dtspute anse between the parties hereto; and, Gibbs, mdividually and collecuvely, agree not to claim conflict of interest should said altomey represent Barcroft in a conflict between the panies hereto; and, Gibbs, eollecrively and individually, hereby waive their/his/her right lo claim connict of interest with regards to saul anomcy m such instance.

4. It is understood and agreed lhat Gibbs may cancel or nullify this contract QD}y untler the following condirions:

a) If Gibbs pays over to Barcroft the sum of five million dollars ($5,0{10,000.00 US)

in full, in addition to any money rccei\·ed pnor to said one time payment. as liljuidatcd damages and full settlement of all considt!ration on Gibbs part.

b.) If Barcroft voluntarily abandons the effort to colh:ct the funds from the sources statt:d herem; ho\\-ever, in th1s event, Barcroft shall retain all amounts already rece1vcd, and w1ll conltnuc to n'CCIVC . any futun: proceeds rrum any of the propeny or other assets. and will retain his ownership interest tn any property <"·~··•••cl '"' Salt of U.ll<l, ;\hn~IPI Rtghh Ro1y~llrc5 and Olh~• AlS<Is and/or Moruc~ " '

lnlhals of all p~rll~s d/? ~-'-"

VII I -c:jf!J!

"lfu_ I v' ~L..lliP_ ---¥-

229

which is covered by this agreement and has been broughc into the conlrol of Gibbs, or is paymg benefits ofany kind at the time of Barcroft's abandonment; or, which is brought mto the control uf Gtbbs, or start paying benefits at a later date, provided that said control or payments is a result of actions prior to Barcroft's abandonment.

5. If Barcroft dies or becomes incapacilated, the contract will remain in force, and the assets wh1ch have been accessed and are paying at the lime of Barcroft's death, or which are later accessed as a result of Barcroft's ~:flbrts, will go to his heirs and assigns.

6. It is hereby agreed that there shall be a business organization, the c:xact type to be agreed upon at a later date. created by the part1es hereto; and, that all revenue of any kind received from any of tht: property ;mdlor assets covered herein shall be deposited into a bank account in that entity's name, and that all expenses necessary to the continuation of revenue being paid to the parties htlreto (z.e. property taxes on the royahtes or property covered herein, and any necessary expt:nscs such as well upkeep, etc.) shall be deducted and paid as required before the 70!30 d1vision agreed to In this contract. Barcroft shall have a 50% vote in the operation of said busmc:ss organization; and, the only function of said business organization shall bt: to fac•htate the agreement in this contract. Any monies paid out of said business organization, other than the agreed upon split between the panies, shall be agreed upon by all parties hereto. The div&ston shall be divided on a basis of 30% to Barcroft. 23.34% to Kcnnelp Vcm Gibbs, 23.3~% to Candace Walton G1bbs, and 2J.33% to Howard Kirk Gibbs, al e<!ch instance of dispersal to the panics. Any pany may demand a split of the assets of said business organization Rt any time. 7. If either party should hrcak the lcnns of this agrecmcm in any fashion, or anempt to render 1he contract invalid, in any way which would require legal action ,lo correct or enforce. the party found at fault, or the party fa1ling lo pre\'all, shall pay all legal expenses of any type for lnmsc1flherself, and tbr the prevailing party.

8 Tht~ contract is wntten to comply with the laws of the State of Texas: and, any provision found hy a court of competent jurisdiction to be in non·compliancc shall be

Conll.ct lor Salt or und, Mmml Rljthl~. Roydlllc~ ~nd Otht• 1\Heh ~ndto1 Me>nocs 4 ln!llal\ oJ •llpar11cs

a

vpf II &I. J u. ~ A=!! k/.;JJI./ -~·

230

automatically amended to comply with said laws in such a manner as to keep the original intent of the provision as closely in place as possible. In no event shall any such findings on one pr~v1sion affect any other provn;mn wllhm the contract.

9. Notwithstanding any other provis1on under the law, it is expressly agreed that this contract shall be performable only in Fannm County, TeKas; and, any dispute(s) will be resolved 1n the courts of Fannin Count>·· Texas. The signing hereto of this contract hy all part1cs completes the sale of 30% of all property and assets of Gibbs to Barcroft

I0. ThiS agreement shall be hinding on all heirs and assigns of the parties hereto.

II. ;\o lien(s) may bt: placed upon any of the property covered herem unless such lien(s) is/are agreed to by all parties hereto, reduced ro writing. and signed by all parties hereto before a notary public.

12. All agreements between the parties hereto arc conlained in writing in this contract, and no verb.alagreemenls shall be deemed valid unless contained in writing herein. All amendments hereto must be iu writing. and signed by all parties before a notary pubhc.

13. Albert Lynn Barcron, Kenneth Vern Gibbs. Candace G1bb!l Walton, and Howard Kirk Gibbs, the principal parties herel<.l, hereby agree to this contract in its entirely without reservation~ and, each pledge never to challenge the tenns, c<lnditions, intentions, andior constderations under tht~ contract with their respective signing hereunder.

L _r/ ?/~-~ ~Gibbs ffh<d!CL ~ /J~ Candace Gibbs Walton

Ho~dKukGibbs _______ (onrraer for Sal• of Land. P.hne1~l R•s~"· 5 Rov~IMs ~nd O!hcr 1\s>tl> ~<>dlor !l.foh~<>

231

ACKNOWLEDGEMtST

STATE OF TEXAS Subscribed, Sworn, and Sealed COUNTY OF COLLIN

On th1s IOih day of Mily 111 the year 2005, Alberl Lynn Bar(:rofl, known 10 me, d1d personally appear before me; and, after taking the oath. deposes and say~ that he 1s the man \lthu executed the foregomg inslrumelll; and. further sllucd that he: executed the same as Ius lrce and in fmmcd act and deed for the purposes stalt:d thcrcm. and with a full uuderstanding of tlu: scope of the provisions c:onlamt:d !herein; and. thai he a o a ide by all said prov1s1ons.

Subscribed and sworn to he fore me this I01h day of May in the year 2005.

J! No~y . L'~-()~ StatVo'fJI~ e.'or the

Subscribed, Sworn, and Sealed COUNT\' OF COLLIN On this 101 ~ duy of May m the year 200.5, Kenneth Vern Gibbs, known to me, did personally appear before me: and, nfier taking the oBth. depos~:s lllld says that he is the man who executed the foregoing instrumcnl: 11ntl. further stated th;ll h~ executed the same ns. his free and infonned act and deed for the pu'lloses stated lhcrcut. and with a full understanding of the &cope of the provisions contamed the rem; and, that he agrees to abide by all said provisions.

~7/~-~ Kenneth Vem Gibbs

Subscribed and sworn to berore me this I o•• day of Mny in the year 200S.

'

<J2~ K ()htt/ - N!tart in and fur the SMo~

t:onu~" ror Sal' of land, Mtncr•l Ro~hl•. 6 Ro>y•htu ~nd Olhu II>!.(IJ •ndlot Monte>

------------··--·

232

STAn.: OF l'EXAS Subscribed, Sworn, and Sealed COUNTY o•· (~OLLIN

On this I Ou. day of May in the year 2005, Candace Gibbs Walton, known to me. did personally appear before nu:; and, aller takmg the oath, deposes and says that she i5 the w<lman who executed the foregoing instrument; and, fur1her stated that she executed the same as her tree and infonned act end deed for the purposes stated therein, Wld with a full understanding of the :.cope of the provisions contaim:d therein; and. that she agrees to abide by nil said provisions.

_(};,pga i(u LV~ Cand;~ce Gibbs Walton

Subscnbcd and sworn to heforc me this Io•h day of May in the year 2005.

·12~R__()~~_) ·- ~ln and for the State~

Subscribed, Sworn, aad Sellll'd COUNTY OF COLI .IN

On this 101h day of May tn the year 2005, Howard Kirk Gibbs, known to me, did personally appear before me; and, after taking the oath, deposes and says lhat he 1s the man who executed the foregorng ms.trumcnt: and, funher slated that he ~xecuted the same as his free and mformtd acl and deed for the purposes sl<~tcd th~:rein, aml with a full understanding of the scope of the provisions contained !herein; and, 1hat he agrees to abide by all said provisions.

Hlll1rd K1rk Gibbs Subscribed and sworn to before me th1s l01h day of May in the year 2005

~~n~,11__ _ Notary m and fo~T~

(;I) nil a" for Sale of Lind, Mont'QI Rlttht>. 7 I{I))Jiun IUld Ol"c• A>~CIS Jndloi Mon~•

233

..

;1!_;·.6~,e. c/t.' F 7 c(CJP, O· ~x: t?P Tt€-'<vt..fP!.-1, ~~ >(C.f 7 s-y9c c... L,)

_t- / ./ ' , L~],'" C::..{h'L}•.,.. /7'

234

PLAINTIFPS EXHIBIT

B

CAUSE No. CV -14-41665

PENTEX FOUNDATION ) JN THE 0JSmiCT COURT PLAINTIFF, )

)

vs. ) 336TII JUDICIAL DJSTRICT )

KENNETH VERN GIBBS; AND ) CANDACE GIBBS WALTON; AND ) HOWARD KIRK GIBBS, )

DEFENDANTS. ) FANNIN COUNTY, TEXAS

KENNETH GIBBS AND CANDACE WALTON'S OBJECTIONS AND RESPONSES TO PENTEX FOUNDATION'S FIRST SET OF ADMISSIONS

TO: PENTEX FOUNDATION, Plaintiff, by and through its attorney of record, Scott Smith, 120 South Crockett Road, Sherman, Texas 75091-0354; email: smithlaw@airmail.net:

COME NOW, KE1\'NETH GIBBS and CANDACE WALTON, Defendants, and serve

their Objections and Responses to Plaintiff Pentex Foundation's First Set of Admissions,

pursuant to Rule 198 of the Texas Rules ofCivil Procedure, as follows:

Pm:.U~HNARY STATEMENTS

I. These responses and objections reflect the current state of Defendants'

investigation concerning the discovery request that Plaintiff bas propounded. Defendants are

still in the process of investigating the facts and attempting to conduct depositions relating to this

action. To date, Plaintiff and Intervenor have refused to set any deposition dates. Accordingly,

.Defendants reserve the right to SURplement these responses and objections with subsequent'ly

discovered information. Furthermore, these responses and objections are given without

prejudice to the right of Defendants to use or to rely upon at any time subsequent to discovered

information or documents.

KENNETH GfBBS AND CANDACE WALTON'S OBJECTIONS t\ND RESI'ONSES TO PENTEX FOUNDATION'S FIRST SuT OF ADMISSIONS CAUXE No. CY·I4-41665 Prmtex Fmmdation vs. Ken11eth Vern Gibbs, el a/. -1·

235

2. Defendants produce the Admissions subject to their objection that no discovery is

due until Plaintiff's authority regarding this matter is determined. Defendants object to the use

ofthese Admissions pending settlement of the issue of Plaintiff's authority.

Respectfully submitted, LAW OFFICES OF CHRISTY LEE, P.C.

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

ATTORNEY FOR KENNETH GIBBS AND CANDACE WALTON

KENNETH GIBBS AND CANDACE WALTON'S OBJECTIONS AND RESPONSES TO PENTEX FOUNDATION'S FIRST SET OF ADMISSIONS CAUSE NO. CV-14-41665 Pentex Foundation vs. Kenneth Vern Gibbs, eta!. -2-

236

' .

EXHIBIT "A "-FactstobeAdmitted

I. The Contract was signed by Candace, Ken, Howard and Barcroft on May 10, 2005.

Admit.

2. Candace received and accepted consideration either directly from. or as a result ot:

the Contract.

Object, as this Request is vague and ambiguous as to consideration in question and calls for legal interpretation of the validity of the Contract. Cannot admit or deny.

3. Ken received and accepted consideration either directly from, or as a result ot: the Contract.

Object. as this Request is vague and ambiguous as to consideration in question and calls for legal interpretation of the validity of the Contract. Cannot admit or deny.

4. Prior to filing the Answer, Candace had never challenged the validity of the Contract.

Deny.

5. Prior to filing the Answer, Ken had never challenged the validity of the Contract.

Deny.

6. Pursuant to the Contract, Candace sold 30% of all land and other property that came to her through her inheritance from the Estates to Barcroft for the consideration provided therein.

Object. as Request calis for legal interpretation. Subject to that objection, admit.

7. Pursuant to the Contract, Ken sold 30% of all land and other property that came to his through her inheritance from the Estates to Barcroft for the consideration provided therein.

ObJect, as Request calls tor iegal inteipretation. Subject to that objection, admit, under the presumption that the stated "her'' in fact refers to '"Ken's inheritance."

8. Barcroft has rendered, anti ,Candace received or bcm,efitted from, the consideration due Candace from Barcroft under the terms of the. Contract.

KENNETH GIBBS AND CANDACE WALTON'S 08JECTJONS AND RESPONSES iO PENmK FOUNDATION'S fiRST SET OF ADMISSIONS CAliSE NO. CV-14-41665 Pemex Foundatio17 1•s. Kemrelh Vum Gibbs, era/. -4-

237

CAUSE NO. CV-14-41665

PENTEX FOUNDATION )

PLAINTIFF, )

)

vs. )

)

KENNETH VERN GIBBS; AND ) CANDACE GrBBS WALTON; AND ) HOWARD KIRK GIBBS, )

DEFENDANTS. ) FANNIN COUNTY, TEXAS

NOTICE OF LEAVE

COMES NOW, Christy L. Lee, of Law Offices of Christy Lee, P.C., counsel of record

for Defendants Kenneth Vern Gibbs and Candace Gibbs Walton, and notice you that Defendants'

Counsel will be on Family Medical Leave Act ("FMLA") for three (3) months, beginning

Monday, August 25, 2014, and continuing through Tuesday, November 25, 2014, unless

otherwise agreed to in writing. See attachment.

Respectfully submitted,

LAW OFFICES OF CHRISTY LEE, P.C.

ATTORNEY FOR DEFENDANTS

Notice of Leave Cause No. cv-14-4 I665 Pentex Foundation vs. Gibbs, eta/. -I-

238

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the above Notice of Leave was delivered, pursuant to Texas Rules of Civil Procedure, to the following parties on this 22nd day of August, 2014:

Pentex Foundation and Facsimile: 903-870-1446 GBU Friends and Associates Trust Email: smithlaw@airmail.net c/o Scott Smith 120 South Crockett Street Sherman, TX 75091

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

Christy L. Lee

Notice of Leave Cause No. cv-14-41665 Pentex Foundation vs. Gibbs, eta/. -2-

239

<:III<ISI\ 1.. 1.1-.1· \//tJI'/11',1

225 E. Fireweed Lane, Ste. 200 Anchorage, Alaska 99503 Phone: 907.339.9931 Fax: 800.437.7901

777 Main Street, Ste. 600 Fort Worth, Texas 76102 Phone: 817.504.6075 August 21, 2014 Fax: 800.437.7901

clee@christyleelaw.com Clerk of the court www.christyleelaw.com 101 E Sam Rayburn Drive, Suite 200 Bonham, TX 75418

Re: Cause No. CV-14-41665 Pentex Foundation vs. Kenneth Vern Gibbs, et al. Notification of Leave August 25,2014 to November 25,2014

Dear Clerk:

Regarding Cause No. CV-14-41665, Pentex Foundation v. Kenneth Vern Gibbs, eta/.: Due to a serious illness in my immediate family, I will be taking Family Medical Leave Act ("FMLA") for three (3) months, beginning Monday, August 25, 2014, and continuing through Tuesday, November 25,2014.

During this time, I will be attending hearings and trials currently docketed. I will make every effort to be available for other relevant hearings. However, while I am on leave, I request that the Court contact me for my schedule prior to setting any additional hearings in the matter.

Please let me know if you have any questions. Thank you for your assistance with this matter.

Very truly yours, LAW OFFICES OF CHRISTY LEE, P.C.

Christy L. Lee

Enclosure

cc: Howard Kirk Gibbs Scott Smith

LAW OWICI-.:SOJI

225Lti.4FSH~-.:w~-.:m LAI\E. STt:. 200 Al\cHolwai. AI~ASKA 9.9508 Nt MAll\: 907.339.9931 B~i .f:~\:B00.43~.:.79o 1

BY 777 MAII\S't:,~TJ:;, QOO FORT WllRTII. TEXAS761 02 PIIOI\E: 817.504.6075 FAX: 800.437.7901

dee@chrislyleelaw.rom August 22, 2014 www.christyleelaw.rum

Clerk of the Court 101 E Sam Rayburn Drive, Suite 200 Bonham, TX 75418

Re: Cause No. CV-14-41665 Pentex Foundation vs. Kenneth Vern Gibbs, et al.

Dear Clerk:

Enclosed is the original as well as a copy ofthe Notice of Leave, to be filed with the Court in the above-noted cause.

Please file the original document with the Court, and return the file-marked copy to the finn in the enclosed self-addressed, stamped mailer.

If you have any questions, please contact our office. Thank you for your assistance with this matter.

Very truly yours, LAW OFFICES OF CHRISTY LEE, P.C.

Laura Hogins, Paralegal

E. . . . . . . vtJUI."'.:>

240 I' I! () \ ( I I \ I I \ \ s I I< \ I I (, I I \

'w'

CAUSE No. CV -14-41665

PENTEX FOUNDATION )

PLAINTIFF, )

)

vs. )

)

KENNETH VERN GIBBS; AND ) CANDACE GIBBS WALTON; AND ) HOWARD KIRK GIBBS, )

DEFENDANTS. ) FANNIN COUNTY, TEXAS

DEFENDANTS' MOTION TO COMPEL APPEARANCE AND TESTIMONY OF ANGELLI CARRASCO AT HEARING ON SEPTEMBER 30,2014

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

through their Counsel of Record. Law Offices of Christy Lee, P.C.. and respectfully move the

Court to compel the appearance and testimony of Angelli Martha Polanco Carrasco. Pentex

Foundation's (''Pcntex'') President, Director, and Chairman, at the hearing for the Motion to

Show Authority, which is scheduled in this matter for September 30, 2014. Ms. Carrasco's

appearance and testimony are required to authenticate documents provided by Pentex's alleged

Counsel. Scott Smith. as evidence of the authority to litigate this Cause. and to answer to the

Court as to the legitimacy of this lawsuit.

I. FACTS.

I. On August 28, 2014, Ken and Candy served Ms. Canasco with a State of Texas

Subpoena, requiring her appearance at the hearing for the Motion to Show Authority scheduled

in this matter for September 30. 20 14. .'J'ee Exhibit A. The Subpoena was issued as a result of

Ken and Candy's repeated unsuccessful inquiries to Pentex as to its designated Representative

for the lawsuit.

DI:FI NIMNTS' MOTION TO (Uf\11'1:1. APPI'\1{:\NlT i\ND TI:STIMOr-6 m ANlii:I.LI C\RR.'\SCO AI Ht:,\RINlj ON Si:PTI-:MBU{ 30, 2014 . C i\USE Nu. CV ·14-41665 tli!'fi:X FOU:\DAIWV 1-'. 01/JBS, !-:TAL. -1-

2. John Skotnik, original Counsel for Pentex, did not divulge the name of the

representative of Pentex authorizing him to file the lawsuit on behalf of Pentex. As Successor

Counsel to Pentex beginning in May 2014, Scott Smith also denied knowing the identity of the

representative of Pentex authorizing the lawsuit. When pressed on the point, Scott stated that

who would be representing Pentex had not yet been determined.

3. On June 20, 2014, more than two and a half (2 1;2) months following the filing of

the suit on April 1, 2014, Scott refused to permit deposition of Pentex 's Board of Directors, and

refused to bend on the claim that Pentex still had not determined who would act as Pentex's

representative regarding the suit. See Exhibit B.

4. Also on June 20, 2014, disclosure produced by Pentex failed to provide a single

name of any party from Pentex having knowledge of the relevant facts. The Plaintiff was listed

simply "Pentex Foundation."

5. On July 31, 2014, Scott testified under oath that he could not recall the name of

1

the parties retaining him. Scott was unrelenting on the point that Pentex's Board of Directors

would not appear to testify. He also categorically stated that he did not represent Ms. Carrasco,

had never met her, and indeed, that he had never even spoken or communicated with her in any

way.

6. On August 5. Scott sent the Honorable Pat Fcrchill of Tarrant County Probate

Court No. 2 a letter which contained purported Minutes of the Board of Directors' Meeting of

Pentex Foundation, dated August 4, 2014, at 10 a.m. See Exhibit C. In his letter to Judge

Ferchill, Scott provided that he had received his retainer from Albert Barcroft and Pentex

1 Tarrant County Probate Court No.2, Cause No. 2005-0000 126-2-D, Walton and Cihhs vs. Miller, eta/.

DEFENDANTS' MOTION TO COMPEL APPEARANCE AND TESTIMONY OF ANGELL! CARRASCO AT HEARING ON SEPTEMBER 30,2014 i4~'loX FOUND/17'/0N V. GIBBS, ErA/..

Royalty Trust. not from Pentex. The Minutes addressed the approval of Pentex's retention of

Scott as Counsel in the current Cause. Signatures of both Ms. Carrasco and Secretary Carlos

Alberto Rivadeneira Escurdero appeared far above the three (3) signature lines. Carlos Escudero

signed the document in two (2) spaces. The signatures appeared identical, as if computer-

generated, and the document did not appear legitimate.

7. Based on the date of the Minutes, which was retroactive to Scott's entry into the

matter, and upon the seeming lack of authenticity of the document, Ken and Candy subpoenaed

Ms. Carrasco, as President, Director, and Chairman of Pentex. The Subpoena was appropriately

served to Scott, as Pentcx's Attorney of Record, due to Ms. Carrasco's tri-fold apex-level

services to Pcntex.

8. On September 3, 2014, Pentex tiled a Motion to Quash or for Protective Order

Relating to Subpoenas and Deposition Notices. The Motion to Quash argued that Ms. Carrasco,

a resident of Panama, does not have a passport for international travel, that travel from Panama,

where she resides, to the Texas courts would he inconvenient, and that Counsel for Pentex had

"repeatedly advised Counsel for Defendants that he does not represent" Ms. Carrasco. Scott

also maintained that Ms. Carrasco is not an employee of Pentex and that Pentex has no control

over Ms. Carrasco. See Para. 6 -- 9. According to Scott. no affidavit from Ms. Carrasco

accompanied the Motion to Quash because of the logistics in obtaining the document from

Panama. 2 Scott contended that the sole reason for Ken and Candy's Subpoena to Ms. Carrasco

was to harass Pentex for filing the suit.

2 Scott did manage. however, to produce an unsworn Affidavit from Albert Barcroft, self-proclaimed Legal Representative of Pentex, who allegedly resides in Guatemala. Scott failed to explain how he could produce the Minutes supposedly signed by Ms. Carrasco, but not produce at least a taxed copy of a signed Affidavit from Ms.

DEFENDANTS' MOTION TO COMPEL APPEARANCE AND TESTIMONY Or ANGELI.I CARRASCO AT HEARING ON SEPTEMBER 30, 2014 CAUSE NO. CV -14-41665 24§/:X FOI.'.\'/!.IrtOV 1". GI/J!JS. IJA/ .. -3-

244

II. LAW.

9. ·'A party is entitled to discovery that is relevant to the subject matter of the

claim. and which appears reasonably calculated to lead to the discovery of admissible

evidence." Monsanto Co. v. May, 889. S.W.2d 274, 276 (Tex. 1994).

I 0. Rule 200 of the Texas Rules of Civil Procedure permits a party to take the

deposition or testimony of "any person," provided that the person has the right to protection

"from undue burden, unnecessary expense, harassment or annoyance, or invasion of personal,

constitutional, or property rights." Tex.R.Civ.P. 166b(5); Monsanto Co. v. May, 889 S. W.2d at

276.

II. When a movant seeks to take testimony of a corporate president or other otlicial

at the highest level of corporate management, and that official moves for a protective order to

prohibit this, the trial court should first determine whether the movant has shown good cause

that the official has unique or superior personal knowledge of discoverable information. In re

Burlington Northern and Santa Fe Railway Company, 99 S.W.3d 323 (Tex.App.-Fort Worth

2003).

12. A party seeking to prevent the testimony of an apex-level witness must move for

protection and must file the corporate official's affidavit denying any knowledge of relevant

facts. Crown Central Petroleum Corporation and Crown Central Pipe Line Company v. The

Honorable Carolyn Garcia, Judge, Re.\pondent, 904 S. W.2d at 128; In re Alcatel USA, Inc., 11

S.W.3d 173 (Tex. 2000).

Carrasco.

DEFENDANTS' MUrtON TO COMPEl. APPI:t\RANCE AND TESTIMONY OF ANGU .1.1 CARRASCO AT HEARINU ON SEPTEMBER 30,2014 CAUSENO. CV-14-41665 f'lo'.\'IFX Fm ·.\IJ..fl'f()\' 1'. GIIJHS, /J,.I/ __ -4-

245

13. Federal Rule 30 addresses apex-level testimony. Courts follow a three- (3-) to

five- (5-) prong test as to whether a designated witness qualifies as a managing agent, including

whether the individual (I) possesses general powers to exercise judgment and discretion in

corporate matters; (2) can be reasonably relied on to give testimony; (3) can be expected to

identify with the interests of the corporation; (4) is the highest authority in the organization; and

(5) is empowered to provide services and decisions concerning matters involved in the

litigation.

Ill. ARGlJMENTS.

14. Ken and Candy have the right to face Pentex's established presence in this case.

This is a basic tenant in judicial proceedings. However, Pentex refused for months to name its

representatives regarding the lawsuit. Two and a half (2 Y2) months following Pentex 's Original

Pentex, Scott still denied being able to recall who provided a substantial retainer fee to his firm.

15. Pentex' s consistent delays in naming its representative regarding the lawsuit

points to a systematic attempt to stall proceedings until such time that the true responsible

parties could be protected and safeguarded from the production of discovery and the necessity

to answer to the Court for pursuing frivolous litigation. Thus far, Pentex has consistently

maintained that this assumption is incorrect. Pentcx must therefore clarify the situation by

allowing Ms. Carrasco to testify to the facts, or the lawsuit should be dismissed.

16. The law permits Ken and Candy to question Ms. Carrasco, who holds not one

(I), not two (2), but three-- 3 -influential and decisive positions within Pentex. It is reasonable

to believe that at least one of these three (3) high-ranking officials of an organization would

notice a lawsuit alleging in excess of $1 million in damages to the organization. And it is also

DI'FJ-:NIJANTS' MOTION TO COMPEl. APPEARANCF AND T/-:STIMONY OF ANl;ELI.I CARRASCO AT llLARIN(; ON SI:PTIJv11ll:R 30. 2014 CAlJSI' No. CV-14-41665 Puvn;x Fm:.'l·n.-mo.v 1. GIIJIIS. rr.11 .. -5-

246

equally reasonable to expect that a lawsuit alleging damages in excess of $1 million would

definitely draw the attention of a single individual who serves in all three (3) capacities within

an organization. In other words, if Ms. Carrasco is really President, Director, and Chair of

Pentex, logically she should know ofPentex's suit against Ken and Candy.

17. According to Scott's Motion to Quash, Pentex has no control over Ms.

Carrasco's actions. Ken and Candy enjoyed a chuckle or two over the idea that a

president/director/chairman is not answerable to the very organization which the

president/director/chair serves. As Scott is well aware, Pentex can remove its President/

Director/Chairman on its own accord. Pentex can also require its President/Director/Chairman

to appear in lawsuits instigated by Pentex itself.

18. Under the standards of apex depositions and testimony, Ms. Carrasco meets all

five (5) criteria. Ms. Carrasco possesses general powers to exercise judgment and discretion in

the corporate matter: as President Director, and Chairman, Ms. Carrasco can be called on to

testify concerning facts related to administrative decisions concerning Pentex; Ms. Carrasco can

be relied on to identify with the interest of Pentex; Ms. Carrasco is allegedly the highest

authority in Pentex: and. if Ms. Carrasco is truly President, Director, and Chairman of Pentex,

her general responsibilities to Pcntcx would presumably involve decisions concerning areas of

administration such as litigation.

19. Pentex's contention that service through him to Ms. Carrasco was conducted

incorrectly. This is a ridiculous assertion. Pursuant to Texas Rules of Civil Procedure, service

to a party of an organization is appropriately effected through service to the organization's

counsel. Scott is allegedly the attorney for the entity - Pentex - and therefore providing him

DUTNDt\NlS' MoTION TO COM I'l-l. API'Lt\Rt\NCI' i\ND TFSTIMONY 01' ANtii'LLI Ct\RRt\Sl'O t\T HI:ARIN(i ON SI:PTFMBI:R 30, 2014 Ct\USENO. CV-14-41665 PtNTEX F'<JUNOAT/(),\' 1'. GII3HS, /JAL -6-

247

with service of Ms. Carrasco's Subpoena was not only appropriate. but required by the Texas

Rules of Civil Procedure. Ms. Carrasco is President, Director, and Chairman of Pentex. Top of

the Board, in fact. The figurehead of Pentex. If Ms. Carrasco should not be served through

Scott. then through whom? Because Ms. Carrasco holds the tri-fold apex-level positions in

Pentex, Scott in effect represents her, just as she represents Pentex.

20. Scott also aggressively objected to Ms. Carrasco's Subpoena on the basis that

Ms. Carrasco lives in Guatemala. This is a ridiculous argument. Scott is fighting aggressively

because he had no authority to file this lawsuit. and by his own admissions has never spoken to

anyone at Pentex besides Albert Barcroft. In fact, it was Albert Barcroft who provided him the

retainer to this lawsuit, not Pentex.

21. Pentex also objected to Ms. Canasco's appearance at the September 30, 2014,

because she does not have a passport. This excuse strains credulity. Ms. Carrasco is the

President/Director/Chairman of a multi-national organization engaged in litigation over assets

supposedly worth millions of dollars. It is reasonable to presume that Ms. Carrasco holds a

passport allowing her to travel to the countries where Pentex conducts its business, especially to

countries as close to Panama as is the United States.

22. For the same reason, Pentex's objection that travel from Panama would

inconvenience Ms. Carrasco is ludicrous. Ken and Candy would like to remind Ms. Carrasco

that, in the matter of convenience, judicial economy dictates that every party involved must

cooperate to achieve resolution. Pentex sued Ken and Candy; Ken and Candy did not sue

Pentex.

DEFioNDi\NTS' MOTION TO COMI'I:I. API'I'i\Ri\NCE t\ND TESTIMONY OF AN(iLLI.I CARRASCO i\T HLARIN(i ON SLPTEMill:l~ 30.2014 Ci\LJSI'NO. CV-14-41 PHNlJ:"X FOUNIJ.1T/O,V 1". GIIJ!JS, !:TAL

248

23. Ms. Carrasco's presence at proceedings is understandably expected, given her

tri-fold positions in Pentex, the value of the assets at stake, and the indecisiveness about the

responsible parties thus far displayed by Pentex.

24. Most importantly, Ms. Carrasco's appearance and testimony are also necessary

to authenticate the signatures on the Minutes of the Board of Directors' Meeting of Pentex

Foundation, dated August 4, 2014, at 10 a.m. In the copy of the Minutes produced to Ken and

Candy, the document looks falsified, with signatures floating almost one-half (1/2") above the

lines. The Minutes are dated August 4, 2014, four (4) months and three (3) days after Pentex

filed its lawsuit. If such a meeting actually occurred, it would have necessarily occurred post-

filing, and the curious timetable understandably raises concerns about the legitimacy of the filed

suit.

25. Pentcx claimed that the Subpoena of Ms. Carrasco was intended only for

harassment purposes and to increase Pentex's attorney's fees. Pentex avoided defining

harassment legally, or even generically. Pentex leveled the charge against Ken and Candy with

no evidence, not even any supporting theories. How, one wonders, can it be harassment for

defendants to seek the testimony of the individual who holds three (3) apex-level positions of

the organization which filed suit against them? How is it harassment to interview the person

with authority to pursue a lawsuit? Courts determined that it is not harassment to seek the

testimony of a person who has personal knowledge of events relevant to a lawsuit. In this case,

Pentex sued Ken and Candy, not the other way around. Pentex is the Plaintiff in this matter, and

as such. the burden of proof falls on Pcntex, including the burden of proving that the lawsuit is

justifiable. Ken and Candy have the right to question their accuser about the purported Minutes,

DITI:NDANTS' MOTION TO COMI'I:I. APPI-:ARi\NCI· 1\ND TiSTIMONY 01' AN(ii'I.LI CARRASCO AI' 1-fl:i\RIN(i ON Si:PTI'MBI:R 30, 2014 PENYL'X FOUN/JATIUN 1'. GIBBS, /"TAl ..

249

and other issues related to this suit. And Ms. Carrasco must appear to substantiate the Minutes,

as she is the only party who can attest that her signature on the document is genuine.

26. Pentex's claim that Ken and Candy subpoenaed Ms. Carrasco to increase

Pentex's attorney's fees is similarly outlandish. As Defendants in this matter, Ken and Candy

are simply enforcing their rights. If Pentex wishes to cut its attorney's fees, Pentex might

consider the uncontested production of evidence and testimony to which Ken and Candy are

rightfully entitled.

27. According to Scott no affidavit from Ms. Carrasco accompanied the Motion to

Quash because of the logistics in obtaining the document from Panama. What? Panama has a

United States Embassy in which Ms. Carrasco could obtain a notarized statement. The law is

very clear: a party seeking to prevent the deposition or testimony of an apex-level witness must

move for protection and must file the corporate official's affidavit denying any knowledge of

relevant facts. Crown Central Petroleum Corporation and Crown Central Pipe Line Company

v. The Honorable Carolyn Garcia, Judge, Respondent, 904 S.W.2d at 128; In re Alcatel USA,

Inc., II S.WJd 173 (Tex. 2000). Scott did not provide an affidavit because Scott has never

spoken to Ms. Carrasco, Ms. Carrasco did not sign the Board Minutes, and she has no

knowledge of this lawsuit. Scott continues to perpetrate a fraud on this Court, because, as he

stated during the July 31, 2014, hearing in Tarrant County, he takes any client who can pay him

a retainer. The fact remains that he must have authority from the entity to tile a lawsuit. He did

not obtain this, as no authority exists. Ms. Carrasco, the President, Director, and Chairman, is

the only person who can verify if this is a lawsuit which Pentex provided authority to pursue.

DllTND/\NTS' MOTION TO COMPU. AI'I'Li\R/\NCI' liND Ti-:STIMONY OF ANCiU .LI CARRASCO 1\l HI:ARIN(i ON SJ:l'TI:Mill'l{ 30, 2014 CAliSE No. CV-14-41665 Pt~Nl'lcXFOUN/JAl'IOl'l 1·. GIHBS, /~TAl.. -9-

250

28. Scott did not rece1ve any funds from Pentex to pursue this lawsuit. He has

received money only from Albert Barcroft, Pentex Royalty Trust, and GBU Friends and

Associates Trust. Pentex has not paid Scott one dime for pursuing this lawsuit.

29. Ken and Candy arc entitled to face their accuser, in this case, Pentex, and to

question those with the authority to represent Pentex. The law is clear in that Ken and Candy

are allowed to ask for Ms. Carrasco's testimony, as she meets the five- (5-) pronged test of

managing agent of Pentex. As President/Director/Chairman of Pentex. Ms. Carrasco has the

unique opportunity to provide highly relevant infmmation concerning this matter and therefore

must show herself to the Court and respond to examination concerning the legitimacy of the

suit.

IV. PRAYER FOR RELIEF.

Candy and Ken therefore respectfully pray that this Court:

30. Compel the appearance and testimony of Angelli Carrasco, and her production of

relevant corporate documents attesting to Pentex's authority to file this lawsuit, at the hearing

for the Motion to Show Authority, to be held on September 30, 2014; or,

31. In the alternative, stay the proceedings until such time that Angelli Carrasco can

attend a hearing on the matter; and

32. Enter all other Orders and further relief, legal and equitable, that the Court deems

appropriate in this matter.

DEITNDANTS' MOTION TO COMI'I'I. API'J·:,\RANCI: AND T!:STIMONY OF ANOJ:I.I.I C ARRASl'O AT HFAR IN(i ON S EPTFMBFR 30, 20 14 CAliSLNO. CV-14-41665 PI~NT!:X FOUNDAI'Iot•: 1". GIBBS, !:TAL -10-

251

Respectfully submitted,

LAW OFFICES OF CHRISTY LEE, P.C.

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

ATTORNEY FOR PLAINTIFFS

FIAT

The above and foregoing Defendants' Motion to Compel Appearance and Testimony of Angelli Carrasco at Hearing on September 30, 2014, is approved. The Motion shall be heard by the Court on the day of , 2014, at _ _ _ __ o'clock, .m.

Presiding Judge or Clerk of the Court

DI'ITNDANTS' MOTION TO 0JMI'I"I. Al'l'li\IU\NlT AND TESTIMONY OF AN(ii:I.Ll CARRASl'O AT Ht:ARIN(i ON SI'I'TJ:MBI'R 30,2014 CALJSL No. CV-14-41665 PEN7EX FOIJNDAYWA' 1'. GIBBS, !:.TAL -II-

252

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the above Defendants' Motion to Compel Appearance and Testimony of Angelli Carrasco at the Hearing on September 30, 2014, was delivered, pursuant to Texas Rules of Civil Procedure, to the following parties on this 15th date of September, 2014:

Via:

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

Pentex Foundation, and Email: smithlaw@airmail.net GBU Friends and Associates Trust Fax: c/o Scott Smith, Attorney of Record I 20 South Crockett Street Sherman, TX 75091-0354

Christy L. Lee

DEFENDANTS' MOTION TO COMPLL APPLARANCI: AND TESTIMONY OF AN<WLLI CARRASCO AT HEARING ON SEPTEMBER 30,2014 CAtJSENO. CY-14-41665 PENTEX FOUNDATION V. GIBB.S; ETAL. -12-

CAUSE No. CV-14-41665

PENTEX FOUNDATION ) IN THE DISTRICT COURT PLAINTIFF, )

)

vs. ) 336111 JUDICIAL DISTRICT )

KENNETH VERN GIBBS; AND ) CAN DACE GIBBS WALTON; AND ) HOWARD KIRK GIBBS, )

DEFENDANTS. ) FANNIN COUNTY, TEXAS

THE STATE OF TEXAS SUBPOENA

TO: Angelli Martha Polanco Can-asco, President Chairman, and Director of Pentex

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

YOU ARE COMMANDED by the State of Texas to appear before the 336111 Judicial

District Court, Fannin County, at 101 E. Sam Rayburn Drive, Suite 200, Bonham Texas 75418,

on the 30111 day of September, 2014, at 8:30 o'clock a.m., to attend and give testimony.

ENFORCEMENT OF SUBPOENA

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

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

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

served, and may be punished by fine or confinement, or both.

INSTRUCTIONS

A. lf you object or othen.vise decline to respond to any portion of a request,

provide all documents for that portion of the request to which you do not o~iect or decline to

respond.

THE STATE OF TEXAS SUBPOENA CA.usr; No. cv -14-41665 P!!NTHX FOUNDA710N JIS. GIIJHS. ET AI•. -I-

Exhibit .

253 Page _ _.__ of ....:~F.,.;..-

B. If you object to a request on the grounds that it is too broad (i.\!., that it

calls for both relevant and irrelevant information), provide such documents which are

concededly relevant.

C. If you object to a request on the grounds that it would constitute an undue

burden, provide such requested documents as can be supplied without undertaking an undue

burden.

D. If you object to any portion of a request because of a claim of privilege,

identify all persons to whom such documents were disclosed, the general nature of such

documents, the nature of the privilege asserted, and the dates of any communications or

documents from which such privilege is asserted. You are further directed to redact and

disclose any portion of such document that is concededly not privileged.

DUCES TECUM

1. You are hereby requested to make available the documents listed below at the above-

mentioned time and place.

A. A true and correct copy of all Pentex Foundation incorporation documents.

B. All board meeting minutes associated with hiring John Skotnik.

C. All board meeting minutes associated with hiring Scott Smith.

2. The subpoena is prepared and issued for Defendants Kenneth Gibbs and Candace

Walton, by Counsel, in accordance with Rule 176 of the Texas Rules of Civil Procedure.

THESTATEOFTEXASSUDPOENA CAUSE NO. CV-14-41665 Pt.NTEX FOUNDATION YS. GIBBS. ET AL. -2-

Exhibit ,. 4 254 Page_ :J of=3:..__;,.~

Issued on August 28,2014.

LAW OFFICES OF CHRISTY LEE, P.C.

Christy L. Lee Texas State Bar No. 24052302 777 Main Street, Suite 600 Fort Worth, TX 76102 Office: (817) 504-6075 Fax: (800) 437-7901 ,£1ec@christyleelaw.com

ATTORNEY FOR DEFENDANTS

TI-lE STAn; OF TEXAS SUBPOENA CAUSE No. CV-14-41665 I'ENTEX FOUNDATION VS. GIBBS, ET AL. -3-

Exhibit

255 Page 3 of __"'-i----'

Filters Used: Date Printed: 9/12/2014 1 Tagged Record Email Report Time Printed: 5:38PM Printed By: LAURA Form Format

Date 6/20/2014 Time 8:24AM 8:24AM Duration 0.00 (hours) Code Subject Re: Pentex Admissions Staff Christy L Lee Client Smith, Scott MatterRef Litigation - Pentex Foundation vs. G MatterNo From smithlaw@ainnail.net To Christy Lee; Howard Gibbs CCTo BCCTo Reminders (days before) Follow N Done N Notify Y Hide N Trigger N Private N Status Custom1 Custom3 Custom2 Custom4 Christy, I am fine with accepting email as a fonn of service, provided we also agree to acknowledge receipt by email. Also, if you want discovery to end on December 3rd, that is fine with me. I am not sure the Judge actually was addressing discovery, but was just expressing her view that the case be ready to go by that date. I have modified the proposed scheduling order, and have attached lt. Enclosed please find the Response to the Request f'lr Disclosure by Pentex Foundation. With respect to depositions, I will not be able to agree to have the entire board of Pentex deposed. That is harassing and outside the scope of pennissible discovery. Moreover, unless and until Mr. Barcroft is the designated corporate representative of Pentex, I cannot produce him. He may be a fact witness, but he is not my client We have not yet detennined who will be the corporate representative for Pentex in this litigation, but will do so in the nearfuture. Regards, Scott ···- Original Message - - From: Christy Lee To: Scott Smith ; Howard Gibbs Sent: Thursday, June 19, 2014 4:04PM Subject: RE: Pentex Admissions

Exhibit

256 1

\..>··

SCOTT SMITH ATTORNEY AND COUNSELOR AT LAW

E-MAIL: smithlaw@airmail.net 120 SOUTH CROCKETI STREET fACSIMILE: (903) 870-1446 P.O. Box354 TELEPHONE: (903) 868-8686 SHERMAN, TEXAS 75091-0354

August 5, 2014

Honorable Pat Ferchill Judge, Tarrant County Probate Court Number Two The Old Courthouse 100 W. Weatherford, Room 220A Fort Worth, Texas 76196

RE: Candace Walton, et al. v. Beverly Miller, Trustee, et al.; Cause Number 2005-0000126-2-D in the Probate Court Number Two of Tarrant County, Texas.

Dear Judge Ferchill:

As you may recall, I appeared for a special appearance on behalf ofPentex Foundation on July 31, 2014. In connection therewith, I testified regarding a motion to show my authority to represent Pentex Foundation. At that time, I was unsure of the source of payment of my initial retainer. I have reviewed my records and the payments were each in the sum of$5,000 from Pentex Royalty Trust and Mr. Albert Barcroft. I am also attaching a copy of a resolution from Pentex Foundation regarding my engagement as their counsel. I thank you for your attention to this matter.

TSS/bhs

cc: Christy L. Lee, Esq.; Howard Kirk Gibbs, Pro Se.

257 Page I

258

MINUTES OF THE BOARD OF DIRECTORS'

l\'IEETING OF PENTEX FOUNDATION

A meeting of the Foundation Council ofPENTEX FOUNDATION, organized according to the laws oftl1e Republic of Panama and registered to microjacket twenty nine thousand five hundred and thirty six (29536), document one million three hundred fifty four thousand eight hundred ninety three (1354893) of the Mercantile Section of the Public Registry, it was celebrated in the city ofPanmna, Republic ofPanmna on the fourth day (4~~>) of August ofthc year two thousand and fourteen (2014) at 10 o'clock in the morning (10 a.m.).

It was a meeting of nil the known Directors:

Mrs. ANGELLI MARTHA POLANCO CARRASCO, Mr. CARLOS ALBERTO RIVADENEIRA ESCUDERO and FERNANDO ELIAS BARAHONA PEREZ who had prior waived the call.

The Chairman was Mrs. ANGELLI MARTHA POLANCO CARRASCO, and the Secretary Mr. CARLOS ALBERTO RIVADENEIRA ESCUDERO, both as holders of said positions.

The quomm hm•ing been confirmed, the Chairman opened the meeting stating that a question has emergeti as to the authority of Mario Guilermo Hurtarte Arrivillaga, the Managing Director, Legal Aflairs ofPENTEX FOUNDATION, to hire legal counsel in the United States for affairs requiring liligation. Specifically, the hiring of one Scott Smith, Attorney at Law, to represent PENTEX FOUNDATION in ongoing litigation involving PENTEX FOUNDATION in Fannin County, Texas, U.S.A.

Upon motion presented, duly seconded, the following resohltion was unanimously approved:

IT IS HEREBY RESOLVED:

That the Board ofPENTEX FOUNDATION verifies that Mario Guilermo Hurtarte Arrivillaga is authorized to hire legal counsel on behnlfofPENTEX FOUNDATION to litigate any necessary legal matters tbat might arise in the United States. Further, it is resolved that Mario Guilermo HurtarteArrivillagn, as Manuging Director, Legal Affairs ofPENTEX FOUNDATION, was authorized to sign the "AGREEMENT FOR LEGAL SERVICES" hiring Scott Smith, Attorney At Law, to represent and provide legal services to PENTEX FOUNDATION on May 5, 2014, in Cause Number CV-14-41665 in Fannin County, Te:ws, U.S.A. Further, by this resolution, PENTEX FOUNDATION conlirms Scott Smith, Texas State Bnr Number 18688900, as its attorney in Cause Number CV-14-41665 in Fannin County, Texas, U.S.A.; and, that Scott Smith hns represented PENTEX FOUNDATION in Cause Number CV-14-41665 in Fnnnin County, Texns, U.S.A., since May 5, 2014.

By this resolution, it is further resolved that Mnrio Guilermo HurtarteArrh•illaga, the Managing Director, Legal Affairs ofPENTEX FOUNDATION, is authorized until further notice to make any further necessary changes In legol representation for PENTEX FOUNDATION in any legal proceedings in the United States, and to make any decisions afl'ecting PENTEX FOUNDATION in any oithose legal matters. The authority granted M11rio Guilermo Hurtarte Arrivillnga is concurrent with, and does not limit or change, the authority granted Dmmy R. Unger through a Limited Power of Attorney from PENTEX FOUNDATION in a preceding resolution.

l11ere not being any other matter to attend the meeting was adjourned at ele1•en (II :00) a.m. on the above mentioned date.

The President, ANGELLI MARTHA POLANCO CARRASCO,

259

The Secretary, CARLOS ALBERTO RIVADENEJRA ESCUDERO.

The undersigned, Secretary of the foundation named PENT EX FOUNDATION by Ihis means ccrtilies thnt the above minutes is a true copy of its original. rt agrees with each and every one of its parts as U1e one that remains in the Book of Minutes of the foundation.

The Secretory, CARLOS ALBERTO RIVADENEIRA ESCUDERO.

Exhibit

Page _] of

260

,•

,.

PENTEX FOUNDATION PLAINTIFF.

vs.

KENNETH VERN GIBBS; AND CANDACE GIBBS WALTON; AND HOWARD KIRK GIBBS, DEfENDANTS.

DEFENDANTS' MOTION TO COMPEL APPEARANCEAND TESTIMONY OF ALBERT BARCROFT AT HEARING ON SEPTEMBER 30,2014

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

through their Counsel of Record. Law Offices of Christy Lee, P.C., and respectfully move the

Court to compel the appearance and testimony of Albert Barcroft, Pentex Foundation's

(''Pentex") Legal Representative, at the hearing for the Motion to Show Authority, which is

scheduled in this matter for September 30, 2014. For approximately two and a half (2 Yz)

months after the initiation of the lawsuit, Pentex claimed that no representative for this lawsuit

had been decided. This was - and continues to be - a shocking claim, especially since, dating

back to the creation of Pentex in 2008, Albert has proclaimed himself the Legal Representative

of Pentex. As recently as September 3, 2014, Albert was still professing to be an agent tor

Pentex. Evidence proves, and Ken and Candy know. that Albert is the alter ego of Pentex:

Pentex Royalty Trust: Renhaw, Inc.; and GBU Friends and Associates Trust ("GBU Trust"); all

of which are major players in this Cause. The evidence obtained thus far during this lawsuit

shows that Albert possesses exclusive information pertinent to this suit. Albert's testimony,

DEFENDANT'S MOTION TO COMPEL APPEARANCE AND TESTIMONY OF ALI3ER'f BARCROFT AT HEARING ON SEPTEMBER 30, 2014 CAUSE No. CV -14-41665 PENTF.X FOUNDATION 1'. GIBBS, ETAI.. -1-

261

including the declaration of the authorized Pentex representative, is paramount to achieving

justice in this matter. Albert is the touchstone for this matter.

I. FACTS.

1. On August 28, 2014, Ken and Candy served Albert with a State of Texas

Subpoena, requiring his appearance at the hearing for the Motion to Show Authority scheduled

in this matter for September 30, 2014. See Exhibit A. The Subpoena was issued as a result of

Ken and Candy's communications with Albert dating back to 2005 and their repeated

unsuccessful inquiries to Pentex as to its designated Representative for this lawsuit.

2. Ken and Candy perceive the Subpoena as critical to their defense, because Albert

possesses specific knowledge as to the allegations in Pentex's Original Petition. Since Pentex's

establishment in 2008, Albert has consistently represented himself both in private

communications and publicly as Pentex's Legal Representative. The Subpoena was served to

Scott Smith, who, since the beginning of his legal services to Pentex. consistently denied that

Albert is his client, but also consistently admitted that he and Albert spoke numerous times

about the facts related to this case.

3. It is Ken and Candy's conviction, and there is a great deal of evidence to suggest,

that Albert is the party responsible for this lawsuit. Currently pending in this matter is Ken and

Candy's Motion for Leave of Court to File Third-Party Petition and Alter Ego concerning

Albert's involvement with Pentex.

4. Albert's connection to Pentex is well-documented. According to formation

1

records. Pentex was established on May 21, 2008 - about three (3) years following the

1 Pentex was not registered in Panama until June 26, 2014.

DEFENDANT'S MOTION TO COMPEL APPEARANCE AND TESTIMONY OF ALBERT BARCROFT AT HEARING ON SEPTEMHER 30,2014 PENTEX FOUNDATION 1'. GiBBS, fTA/..

execution of the Contract for Sale of Land ("the CSL"), which Albert illegally drafted, and

which concerned assets of the Estate of Belt Hughes Gibbs ("the Estate"); and about four (4)

months prior to the execution of the Family Settlement Agreement ("FSA"), which specified the

terms under which certain parties would receive their distributions from the Estate, including

the creation of an entity to receive the distributions. Pentex alluded to the CSL numerous times

in its Original Petition, while Albert was a party to the FSA, along with Defendants Howard

Kirk Gibbs, Ken, and Candy. At the time of Pentex's creation, Albert confided to Ken and

Candy that he created Pentex to avoid seizure of his assets by the I.R.S., and he assigned Pentex

his interest in GWB Family and Friends Trust ("GWB Trust"), the entity established to receive

distributions from the Estate.

5. Through discovery, it has been determined that, in late 2008, Albert provided all

communications with the Estate concerning any and all attorney fee distributions for Ken and

Candy. Albert signed all the documents associated with these distributions and distributions to

GWB Trust. Albert signed all these documents as the Legal Representative for Pentex. From the

moment Pentex was established, Albert portrayed to everyone, including Ken and Candy, that

he was the Legal Representative tor the entity.

6. By 2013, as a result of Ken and Candy's inquiries concerning its administration,

communications among GWB Trust members had irrevocably broken down. On November 25,

2013, acting as Legal Representative of both Pentex and Renhaw, Inc., which he described as a

Panamanian, wholly-owned subsidiary of Pentex, Albert issued to the Beneficiaries a letter

entitled ·'Formal Notice of Revocation of GWB Family and Friends Trust and split of assets

2 It is an undisputed fact that Albert drafted the CSL. Albert is not a lawyer and was practicing law without a license. Albert threatened Ken and Candy not to obtain legal counsel to review the CSL prior to signing it.

DEFENDANT'S MOTION TO COMPEL APPEARANCE AND TESTIMONY OF ALBERT BARCROFT AT HEARING ON SEPTEMBER 30,2014 PE\"11:'.\' FOiiNJJATION 1'. GJJJ/JS, 1:1' ill..

263

pursuant to original contract between the parties." In the letter, Albert identified himself as

"Agent" for Pentex, and its affiliates, Pentex Royalty Trust and Renhaw, Inc. See Exhibit B.

7. On November 28, 2013, upon receiving instructions from Albert as Legal

Representative of Pentex, GWB Trust Trustee Beverly Miller transferred 57.19% interest in

GWB Trust to GBU Trust.

8. On December 18, 2013, Albert sent a letter to Counsel for the Estate, which was

the originating entity of the assets distributed to GWB Trust. Albert signed the letter in his

"personal capacity, and as legal representative for PENTEX FOUNDATION, Pentex Royalty

Trust, and Renhaw, Inc." The letter contained Albert's certification and affirmation under

penalty of perjury that he was "the legal representative for Pentex Royalty Trust, PENTEX

FOUNDATION, and Renhaw, Inc.; and as such, [he had] the authority to make all legal

decisions on their behalf. [~8 USC § 1746(1 )]." See Exhibit C.

9. Approximately five (5) months ago, Albert consulted RayAnswers, Attorney, an

on-line "Estate Law Specialist." The consultation consisted of Albert's disclosure of

confidential information, including the names of Ken, Candy, and Pentex. 3 He provided details

concerning the CSL and the FSA, and asked for an assessment of the situation as he promoted

it. See Exhibit D.

10. Pentex filed the current suit on April l, 2014. Despite Ken and Candy's repeated

requests for full disclosure as to the identity of the Pentex representative who authorized filing

the suit, no such information was forthcoming from Pentex, immediately or otherwise. John

-' While no doubt the consultation should have remained confidential, in fact, the posting is available to the public and was found on various dates, including September II, 2014, at the following web address: h!JQ://"'fW't{.justansw_\;_r:,_g_gm/.est&t~!!!.'!'d8d±I<L-ans_"'fered_:texa_:?_~_lLIJ~t:~1tQI~-th_r~!'_:.::i1_1_givig_1@ls.htm1. In the web exchange, Albert confessed to not liking the advice he received, but admitted to "needing to hear it."

D!Tt:ND/\NT'S MOTION TO COMPEl. APPE/\Ri\NCT AND TESTIMONY OF ALBERT BARCROFT i\T HEARING ON SEPTEMBU{ 30,2014 Pf.Nl'hX FOUNOATION 1'. GIBBS, t.TAL.

264

Skotnik, original Counsel for Pentex, did not divulge the name of the representative of Pentex

authorizing him to file the lawsuit on behalf of Pentex. When Ken and Candy inquired as to

John's previous related services to the various parties involved, including Albert, Ken, and

Candy, John withdrew from representation of Pentex, still without revealing the identity of the

party contracting with him. However, John denied that he represented Albert in this particular

matter.

11. On April 28, 2014, in response to Pentex's Original Petition, Ken and Candy

tiled their Motion to Show Authority, Motion for Change of Venue, Original Answer,

Affirmative Defenses, Original Counterclaim, and Rule 13 Motion tor Sanctions. Section V,

Defendants' Counterclaim, noted that Albert was also known as Pentex. See Para. 22.

12. As Successor Counsel to Pentex beginning in May 2014, Scott Smith also

denied knowing the identity of the representative of Pentex authorizing the lawsuit. Scott

categorically denied that he represented Albert. However, Scott admitted to Ken and Candy's

Counsel that Albert conferred with him on several occasions concerning this lawsuit and

Pentex's administration. But as late as June 20, 2014, some two and a half (2 Y2) months

following Pentex's Original Petition, Scott was still maintaining that the party who would be

representing Pentex in the matter had not yet been determined. See Exhibit E.

13. Also on June 20, 2014, disclosure produced by Pentex failed to provide a single

name of any party from Pentex having knowledge of the relevant facts. The Plaintiff was listed

simply "Pentex Foundation." However. Pentex listed Albeii as the "original party to the CSL,"

which Pentex · s Original Petition claimed to be at the core of the lawsuit.

DEFENDANT'S MOTION TO COMPEL APPEARANCE AND TESTIMONY 01' ALBI:R'I BARCROFT AT HEARIN(i ON Si:PTLMili'R 30, 2014 CAlJSI:NO. CV-14-41665 Pl:NIEX FOUNOA/10:\i i'. Ctu/JS, JJAL. -5-

14. On July 28, 2014, Ken and Candy filed their First Supplement to Original

Answer and Affirmative Defenses ("the First Supplement"). Part IV, the First Supplement,

contended that Albert is the "responsible third party," within the meaning of Texas Civil

Practice and Remedies Sec. 33.011 (6).

15. During the July 31, 2014, hearing in Tarrant County (Tarrant County Probate

Court No. 2, Cause No. 2005-0000 126-2-D), Scott Smith, Successor Counsel for Pentex in this

Cause, testified under oath that he could not recall the designated representative for Pentex, or

even who paid him, although he was adamant that Angelli Carassco, Pentex's alleged President,

Director, and Chairman, was not his client, that he had never met her, that, indeed, he had never

even spoken with her. In fact, added Scott, he could not even remember who hired his firm for

the matter. But Scott confessed that he had discussed the case with Albert on several occasions.

16. On August 5, 2014. Scott forwarded Judge Pat Ferchill a letter in which he

4

acknowledged that Albert provided a retainer of $5.000 for this current Cause. See Exhibit F.

17. During the discovery process, on September 3, 2014, Pentex admitted to Ken and

Candy that, at the time of the alleged damage done to Pentex, Albert "had the authority to carry

on all business in the United States for Pentex Foundation." See Exhibit G, Admission No. 25.

Pentex also stated that Pentex worked with Albert concerning what would evolve into some of

the major points of contention in this lawsuit because doing so was "mutually advantageous."

And, affirmed Pentex, "Mr. Barcroft definitely made Pentex Foundation aware that he thought

there was a problem in the way proceeds were being paid by GWB Trust ... In brief, Barcroft

4 Pentex Royalty Trust also provided $5,000 toward the retainer. Another of Albert's established organizations, Pentex Royalty Trust is the United States receiver ofGWB Trust assets, which in turn were funneled to Pentex.

DEFI:NDANT'S MOTION TO COMPEL APPEARANCE AND TESTIMONY 01' ALBERT BARCROFT AT HIARIN(i ON SI'I'ITMIIFR 30.2014 CAl lSI: No. CV -14-41665 goNILX Fm:.~v·o;~rwx 1·. CJmHs. IJAL. -6-

266

was our express liaison with GWB Trust" (emphasis added). See Exhibit G, Interrogatory

No.2.

18. On September 3, 2014, Albert signed a statement under penalty of perjury

(which, of course. was not notarized), in which he admitted that he is "an agent for Pentex."

However, asserted the unsworn Affidavit, Albert was "not authorized to give testimony on

behalf of PENTEX FOUNDATION at this point in time." See Exhibit H. The document did

not indicate which point in time Albert would be authorized to give testimony - presumably

sometime post-litigation. The document was attached to the Motion to Quash or for Protective

Order Relating to Subpoenas and Deposition Notices, which Scott filed with this Court on

September 3, 2014.

19. Also attached to the Motion to Quash was a statement in Spanish from Albert's

alleged physician, Leone! Antonio Ramirez Montenegro. along with a poor English translation

of the statement. According to the English version, there is a file on record in the medical office

stating that Albert suffers hypertension, chronic atrial fibrillation, and degenerative knee

osteoarthritis, and thus is unable to travel. The statement did not affirm that Dr. Montenegro

actually consulted with Albert as a client, just that such files appeared on record. Dr.

Montenegro attested that the statement was provided at the request of the interested party. See

Exhibit I.

20. This physician's statement came as no surprise to Ken and Candy. In or around

November 30. 2009. Albert was said to have faked a heart attack in order to avoid prosecution

for not cleaning the wreckage of his $500,000 yacht, The Great Escape, which ran aground off

the Coast of Belize and fouled its pristine barrier reef. News reports from Channel 5 of Belize

DFITNDANT'S MOTION TO COMPEL APPEARANCT AND TESTIMONY OF Aumn BARCROFT AT Hl:ARIN(i ON Sf'l'li·:Mlli'R 30,2014 CAliS!' No. CV -14-41665 PEN"I"IoX FOUNIJATION 1'. GIBBS, ETAL -7-

267

quoted Newspaper Editor Roy McNett, who stated that he spoke with Albert following the

accident. According to Roy, Albert "did not have a heart attack," and was in Rio Dulce buying

land. See Exhibit J. Some reports claimed that Albert used the insurance coverage from the

wreckage to purchase the $500.000 ranch where he currently is said to reside.

II. LAW.

21. "A party is entitled to discovery that is relevant to the subject matter of the

claim, and which appears reasonably calculated to lead to the discovery of admissible

evidence." Monsanto Co. v. May, 889. S.W.2d 274, 276 (Tex. 1994).

22. Rule 200 of the Texas Rules of Civil Procedure permits a party to take the

testimony of "any person," provided that the person has the right to protection "from undue

burden, unnecessary expense, harassment or annoyance, or invasion of personal, constitutional,

or property rights.'' Tex.R.Civ.P. 166b(5); Monsanto Co. v. May, 889 S.W.2d at 276.

Ill. ARGUMENTS.

23. Ken and Candy have the right to face Pentex's established presence in this case.

This is a basic tenant in judicial proceedings. However, Pentex refused for months to name its

representatives regarding the lawsuit. Two and a half (2 liz) months following Pentex's Original

Pentex, Scott still denied being able to recall who provided a substantial retainer fee to his firm.

24. Ken and Candy believe that Pentex's consistent delays in naming its

representative regarding the lawsuit points to a systematic attempt to stall proceedings until

such time that the true responsible parties could be protected and safeguarded from the

production of discovery and the necessity to answer to the Court for pursuing frivolous

litigation. Thus far, Pentex has consistently maintained that this assumption is incorrect, while

DEFENDANT'S MOTION TO COMPEl. APPEARIINCI' AND T!-SriMONY OF ALBUn BARCROFT AT HEARING ON SI:l'TLMBER 30,2014 PENTEX FOUNOATJO;Ii 1'. GJJJBS, !:TAL

26

also maintaining that Alber~ is the sole point of contact for Pentex regarding this lawsuit.

Pentex must therefore clarify the situation by allowing Albert Barcroft to testify to the facts, or

the lawsuit should be dismissed.

25. The law permits Ken and Candy to question Albert who. since 2008, has

consistently characterized himself as Legal Representative for Pentex. Scott admitted that he

has spoken with Albert multiple times concerning this lawsuit, while Scott has provided no

other names of parties with whom he has engaged in discussions concerning Pentex. Scott

admitted that he accepted a $5,000 retainer fee from Albert. Although in August 2014, Danny

Unger was named to be Pentex's representative concerning this suit, Danny's specific interest in

the matter has never been clarified. Danny Unger's name cropped up briefly in Pentex's

disclosure as party who is generally familiar with "all of the transactions involving the Barcroft

interest and its successiOn. Scott also denied that Angelli Carrasco. Pentex's

President/Director/Chairman, is responsible for this suit. ln other words, Albert is apparently

the only individual from Pentex who is actively pursuing this suit.

26. The argument that Albert is too ill to travel is highly suspect. In the past, Albert

allegedly confessed that he faked a heart attack to avoid legal proceedings when his yacht sank

off the coast of Belize. Albert's September 3, 2014, physician's statement did not state that

Albert was under the physician's immediate care - only that there was a file in the medical

office. At this time, Albert is believed to be traveling in Texas. 5 How else can Pentex explain

5 Ken and Candy have cause to believe that Albert is currently traveling in the United States, although his residence is in Guatemala, where he fled in 2008 to escape collection efforts by the Internal Revenue Service ("the I.R.S."). In 2013, Albert provided written instructions to relevant parties that he could not be served official documents in Guatemala, since mail service is notoriously poor. His written communications to Ken and Candy failed to contain return addresses. Because of the difficulty of communicating with Albert, on August 20, 2014, Tarrant County Probate Court No. 2 ordered Substitute Service of Citation to him. Cause No. 2005-0000126-2-D, Walton and

DEFENDANT'S MOTION TO COMPEL APPEARANCE AND TESTIMONY OF ALBERT BARCROFT AT HEARING ON SFI''I'FMBFR 30, 2014 CAlJSI'NO. CV-14-41665 8ENn;x FOUNDA1WN V. GIBBS, Cf'AL -9-

how Scott easily produced an unsworn Affidavit from Albe1i, while Scott claimed that an

Affidavit from Pentex's President in Panama, Angelli Carrasco, was not obtainable due to

logistical difficulties?

27. Scott's protestations to the contrary aside, the reason for Scott's ability to

produce an Affidavit from Albert is that Albert was the Pentex representative who retained

Scott. Although Scott claimed not to be able to recall who retained him, he eventually

forwarded a letter to Judge Ferchill affirming that Albert provided him a retainer of $5,000 for

this matter. Pentex Royalty Trust provided another $5,000. What is Pentex Royalty Trust?

Albert designed this entity specifically designed to receive GWB Trust funds, then funnel them

on to Pentex. As the name indicates, Pentex Royalty Trust is virtually the same entity as

Pentex. And both are alter egos for Albert.

28. Scott's lack of recall before the Tarrant County Probate Court indicates a distinct

effort to protect Albert from having to testify. The August 5, 2014, disclosure that Albert and

Pentex Royalty Trust paid Pentex's retainer confirmed Ken and Candy's conviction that it has

been Albert who has pursued the suit all along. Albert clearly felt that by hiding Pentex's

representative's identity from Ken and Candy, that representative would be sheltered from the

suit individually. This should not be the case.

29. The argument that Pentex does not control Albert is ludicrous - and may

paradoxically be somewhat a skewed truth. In all likelihood, in as far as one alter ego does not

control the other, Pentcx docs not control Albert, and Albert does not control Pentex. They are

one and the same.

Gibbs vs. Miller. eta/. ("the Tarrant County Cause").

DEFENDANT'S MOTION TO COMPEL APPEARANCE AND TESTIMONY OF ALBERT BARCROFT AT HEARING ON SEPTEMBER 30,2014 CAUSE NO. CV -14-41 26f:JNTEX FOUNDATION V. GIBBS, t'TAL. -1

30. Albert's appearance at the Motion to Show Authority is necessary to provide

testimony as to his role regarding the lawsuit. From the beginning of the lawsuit, Counsel for

Pentex has lagged in producing the individual responsible for the suit. And from the beginning

of the lawsuit Albert's name has repeatedly emerged as the crux around which this lawsuit

revolves. If Albert does not present testimony, Ken and Candy will be irrevocably harmed, as

they will be unable to cross-examine the party whose manipulations of alter egos has resulted in

this suit. Currently Pentex, a.k.a. Albert, is attempting to block Albert's testimony, so that the

true party in this case is sheltered and protected. Albert's past acts show him to be an individual

openly contemptuous of governmental authority. Albert should not be allowed, then, to use that

governmental authority vicariously, through Pentex, to harass Ken and Candy by the pursuit of

frivolous, meaningless legal action.

IV. PRAYER FOR RELIEF.

Candy and Ken therefore respectfully pray that this Court:

31. Compel the appearance and testimony of Albert Barcroft, and his production of

relevant corporate documents attesting to Pentex's authority to file this lawsuit, at the hearing

for the Motion to Show Authority, to be held on September 30, 2014; or,

32. In the alternative, stay the proceedings until such time that Albert Barcroft can

attend a hearing on the matter; and

33. Enter all other Orders and further relief, legal and equitable, that the Court deems

appropriate in this matter.

DEFENDANT'S MOTION TO COMPEL APPEARANCE AND TESTIMONY OF ALBERT BARCROFT AT HEARING ON SEPTEMBER 30,2014 CAUSE No. CV -14-41665 2 ?{fNTt:X FOUN/JAT/DN 1". GII3BS; £TAL -11-

271

Respectfully submitted.

LAW OFFICES OF CHRISTY LEE, P.C.

,'

/ 1·(.,.:'/ r • } .,.

-· 1,_, ·/- ..<::~~ Christy L. Lee Texas State Bar 1\o. 24052302 777 Main Strc~t Ste. 600 Fort Worth. Texas 76102 (R 17) 504-6075 (800) 437-7901- Fax _ _ ..,_ ______ '-"-'-'-== ckc'ci'christvkclaw.com

ATTORNEY FOR PLAINTIFFS

The ahow and f(m:going Motion to Cnmpd ;\ppcarancc and Testimony of Albert Ban.:roft at I karing nn September 30. 20 I··L is approved. The tvlotion shall be heard by the Court on the -·-day or._ . ---··· _ . 2014. at------··-----·--- o'clock .

.m.

Presiding Judge or Clerk of the Court

Dt:FEI\IMN t'S MOTION TO COMI't't. 1\PPI:;\R/\Nl 'I' AN!J lt:S'i'IMO"JY OF AtnHn B:\ltctH>FT ,\l 1-11'/\RlNc; 1 >"J St:t"lHvllli'R 30.2014 Ct\l!SI' Nl>. CV-14-41665 P!i\TI:'X Ft Jt :_,·/uTJ(p; 1·. Gmus. r.r.-11 .. -l

Respectfully submitted,

LAW OFFICES OF CHRISTY LEE, P.C.

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

ATTORNEY FOR PLAINTIFFS

The above and foregoing Motion to Compel Appearance and Testimony of Albert Barcroft at Hearing on September 30, 2014, is approved. The Motion shall be heard by the Court on the _ _ _ day of , 2014, at o'clock, .m.

DEFENDANT'S MOTION TO COMPIJ. APPEARANCE AND TESTIMONY OF ALBERT BARCROFT AT HEARING ON SU'TEMBF.R 30, 2014 CALJSENO. CV-14-41 2 ]'};.NT!:X FOUNDATION V. GIBBS, ETAL.

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the above Defendants' Motion to Compel Appearance and Testimony of Albert Barcroft at the Hearing on September 30, 2014, was delivered, pursuant to Texas Rules of Civil Procedure, to the following parties on this ~ date of September, 2014:

Via:

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

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

Christy L. Lee

DEFENDANT'S MOTION TO COMPEL APPEARANCE AND TESTIMONY OF ALBERT BARCROFT AT HEARING ON SEPTEMBER 30,2014 CAUSE No. CV -14-41665 2 7~EN'/EX FOUNDA710N 1'. GIBBS, ET Al.. -1

274

CAUSE No. CV -14-41665

PE\!TEX FOUNDATION lN TilE DISTRICT COURT PLA !:":TIFF. )

)

VS. ) 336 111 JUDICIAL DISTI~ICT )

KENNETH VERN GIBBS; AND ) CANDACE GIBBS WALTON; AND ) HOWARD KIRK G1£3BS, )

DEFENDANTS. ) FANNIN COUNTY. TEXAS

THE STATE OF TEXAS SUBPOENA DUCES TECUM FOR ORAL DEPOSITION

TO: Albett Barcroft, legal representative and alter ego of Pentex Foundation c/o Scott Smith,

120 South Crockett Street, Shcrmun. Texas 75091-03 54.

YOU ARE COMtvlANDED by the Stale ofTexas to appear ntl20 South Crockett Street,

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

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

lollowing: (I) division and distribution or attorney fees 11-mn the Estate of Bert Gibbs in 2008.

(2) drafting of the GWB Family and Friends Trust, (3) the Contract for Sale of Contract for Sale

or Land, Mineral Rights and Royalties and all other Assets or tvlonies Received from the Estate of Bert Hughes Gibbs, Kathryn G. Gibbs, and/or the Mary L. Houseworth Trust(s) or "The

Kathryn Houseworth Gibbs Irrevocable Trust." (the "CSL") (4) signing of the Family Settlement

Agreement. and (5) Pentcx Royalty Trust federal Lax liens.

Th~ deposition will be stenographically recorded by Merit Comt Reporters, 307 West 7th

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

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

of this cause. The deposition will conti nuc li·om day to day until completed. All counsel and

parties are invited to attend and cross-examine as they may deem proper. nm STATE 01' TEXAS SIJIWOENA l'F:NT£X FOUNDATION VS. Cif8BS, ET AI..

ENFORCEMENT OF SUBPOE~(.l

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

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

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

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

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

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

date is since the inception of Pentcx Foundation, or November 1. 2008, whichever is earlier):

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

legal representative of Pentex Foundation.

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

legal representative of Pentcx Royalty Trust.

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

legal representative of Renshaw, Inc.

4. A true and correct copy of all cmails and documents in which you corresponded with the

Estate of Bert Gibbs concerning the distribution of attorney fees associated with Kenneth

Gibbs, Candace Walton, and Howard Kirk Gibbs.

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

money transfers. etc.) from you, Pcntex Royally Trust, Pcntex Foundation, Renshaw,

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

interest, paid to Scott Smith.

6. A true and correct copy of any payment (including cancelled checks, mom:y orders,

THE STAn: OF TEXAS SUBPOENA CAliSE NO. CV -14-41665 Pr:NTE:< FOUNDATION VS. CiiiJBS, £T,l/.. -2-

275 Page ,;) of

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

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

interest paid to John Skolnik.

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

money transfers, etc.) you. Pentex Royally Trust, Pcntcx Foundation, Renshaw. Inc.,

GBU Friends and A:-;sociatcs Trust, or any other entity in which you have an interest.

paid to Beverly Miller.

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

money transfers, etc.) you or Pentex Foundation received n·om GWB Family and Friends

Trust.

9. A true and correct copy of all your United States lhkral income tax returns from 2008 to

present tiled by you.

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

since .January I, 2005.

11. A true and correct copies of Pentex Royalty Trust document.

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

present filed by J>cntc>~ Royalty Trust.

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

present.

14. A true and correct copy of your resume.

15. A true and correct copy of your pwfcssional certificult~s and qualilications to be a legal

representative of an international company.

16. A true and correct copy of all communications (including such things as cmails, THE STATE OF TEXAS SUfli'OENi\ Nxnx Fot :,vo.mox 1·s. G1/JIJS. cr . 11..

276 Page

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

GWB Family and Friends Trust. Pcntcx Foundation, Pentcx Royalty Trust, GBU Friends

and Associates Trust, and the Estate of Bert Gibbs, since January, 1, 2013, in regard to

monies received or distributed to anyone or any entity, GBU Friends and Associates

Trust's existence, employer identification number. communications \Vith the Internal

Revenue Service, the CSL. Family Settlement Agreement. any distributions of attorney

fees from the Estate of Bert Gibbs, and the administration of the Estate of Bert Gibbs.

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

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

Sharron Cox and Earl Hargrave, conceming GWB Family and Friends Trust, Pcntex

Foundation. GBU Friends and Assl)ciatcs Trust. and the Estate of Bert Gibbs, since

.January. l 2013. in regard to monies received or distributed to anyone or any entity, GBU

Friends and Associates Trust existence, employer identilication number, communications

with the Internal Revenue Service. the CSL, Family Settlement Agreement any

distributions of attorney fees from the Estate of Bert Gibbs, and the administratior. of the

Estate of Bert Gibbs.

l 8. A true and correct copy of all communications (including such things as emails,

documents, tape recordings, memorandums. etc.) with John Skolnik concerning GWB

Family and Friends Trust. Pentex Foundation. GBU Friends and Associates Trust, and

the Estate of Bert Gibbs since January, l 2008. in regard to monies received or

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

employer identification number, communications with the Internal Revenue Service, the

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

Tt IE STATE OF TEXAS StliWOENt\ CAUSE No. CV • 14-41665 l'hATf.\' FOUNDA110N t:'i. GIJJBS, ETAI.. -4-

Exhlbit , 47,,,:;.·..... ~•.• 277 Page _ _.l.j-L-

Bert Gibbs, and the administration of the Estate of Bert Gibhs.

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

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

G\VB Family and Friends Trust, Pcntcx Foundation. and CIBU Friends and Associates

Trust since January, l 2008, in regards to monies received or distributed to anyone or any

entity. GBU Friends and Associates Trust's cxistt:nce, employer identification number.

communications with the Internal Revenue Service, the CSL Family Settlement

Agreement, any distributions of attorney ices from the Estate of Bert Gibbs, and the

administration of the Estate of Bert Gibbs.

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

clor.:umcnts, tape recordings. memorandums. etc.) ,,·ith Earl Hargrave concerning the

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

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

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

communication with the Internal Revenue Service. the CSL, Family Settlement

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

administration of the Estate of Bert Gibbs.

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

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

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

distribution or attorney fees since January, } 2008.

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

23. True and correct copies of all drat1s of GBU Friends and Associates Trust.

TI-lE STA11' OF TEXAS SUBPOENA C /\liSE No. CV -14-41665 l'E.VTEX FOUNDA170N VS. GIBBS, Et Al.. -5-

Exhibit 278 P:1ge_ 5 of _ _,_,.,~

279

24. A true and correct copy of any articles, books. blogs, or any communications in which

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

avoiding patticipation in lawsuits.

:?.5. True and correct copies or all drafts of the CSL since January I, 2005.

26. A true and cOITect copy of proof of all legal documents in your possession which attest

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

Friends Trust and to the Estate of Bert Hughes Gibbs.

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

Counsel, in accordance with Rule 176 ofthe Texas Rules of Civil Procedure

Issued on September, 2, 2014.

LAW OFFICES OF CHRlSTY LEE. P.C.

···----········-'·---·----···-·-····· ·------···--------- Christy L. Lee Texas Stale Bar No. 24052302 777 Main Street, Suite 600 Fort Worth, TX 76102 Ortice: (S\7) 504-6075 Fax: (800) 437-7901 ~lee(~.brist vleelaw .r;om

ATTORNEY FOR KENNETH GIBBS AND CANDACE WALTON

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing document was delivered. pursuant 10 Texas Rules nf Civil Procedure and Rule 11 Agreement. to the following parties on this 2nd day of September. 2014:

Pentex Foundation ami Via H\x and email GBU r:riends and Associates Trust c/o Scott Smith. Attorney of Record

Till: S'IXI'E OF TEXIIS SUI\I'OEN!\ C\LSE No. CV -14-41665 f'J-Tr!:X FOI!X/J:I'f'/OX IS. GI!!!JS. lil'AL -6-

Exhibit )

120 South Crockett Street Sherman, TX 75091-0354

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

--~~-----··-·-- Christy L. Lee

THE STi\TE OF TEXAS SUBPOENi\ Ct\USE No. CV-14-41665 f'EN11:"X FOUNDATlON VS. GIIJJJ.\; ETAL. -7-

Exhibit

280 Page 7

281

CANDYWAKTON 8172704383» 8006802804 p 1/4 2013-12-02 '12;33

PENTEX FOUNDATION A Private Foundation of Panama, C.A.

November 25, 2013

Kenneth Vern Gibbs [Ken] Candace Gibbs Walton [Candy] Howard Kirk Gibbs [Howard]

RE: Formal Notice of Revocation of GWB Family and Friends Trust and split of assets pursuant to original contract between the parties

Ken, Candy and Howard:

This is my formal notice on behalf of myself, and as Agent for Pentex Royalty Trust and its sole beneficiary PENTEX FOUNDATION, and RENHAW, INC., a Panama corporation and wholly owned subsidiary of PENTEX FOUNDATION, that 1/we are utilizing Item #6 on page 4 of the "Contract for Sale of Land, Mineral Rights and Royalties, and all other Assets or Monies Received from the Estate of Bert Hughes Gibbs, Kathryn G. Gibbs, and/or the Mary L. Houseworth Trust(s) or 'The Kathryn Houseworth Gibbs Irrevocable Trust"', herein also referred to as "Contract for Sale of Land", to split the assets of the GWB Family ar.a Friends Trust1 herein also ''GWB", under the terms provided in said Contract for Sale of Land.

The relationship between us has deteriorated to the point that i no longer wish to be associated with you. I have accused you of not honoring the agreement between us; and you, or at least some of you, have accused me of plotting to steal your portion of the "Estate of Ber~ Hughes Gibbs", herein also "Estate", at the point of any of your deaths. I was even told by Candy that I was not the honorable man I once was.

CANDY WAKTON 8172704383 » 8006802804 P214 2013-12-02 12:33

You have not confined those remarks to conversations between us, because Jay Henderson asked me if I intended to steal your shares.

You hired an attorney who made ridiculous demands of me, told me how stupid I was~ tried to [and succeeded in your mind] create a problem where none existed, explained to me that no one but a BAR attorney could read or understand the law/code, and called me a liar and thief. Where was she when all you had were judgments against you? She even admitted to me that she would never have taken your case back then.

In addition, I do believe that at least two of you have broken our deal and your word to me. When I asked that GWB move to enforce the provision in the Gibbs Family Settlement Agreement, herein also "FSA", to seoll the land, Candy had the nerve to tell me that I had been paid very well for what I did, and that she wanted to keep the land for her daughter. Ken continues to use the "home place" as his own personal property, and refuses to pursue selling it in a viable manner.

The fact is that neither I nor my assigns have been paid what was agreed to and promised. Bert died 9 years ago, the FSA is now 5 years old, and we're no closer to closing the Estate than we were 5 years age. Ken has given an exclusive listing on well over 200 pieces of property tc a car salesman, and that "agent" has not produced a new contract for sale of any land in over a year with some 230 pieces of p;·operty in wha·: everybody calls a "hot11 area at his, and only his, disposal. Further, it is my belief that virtually all the sales this uagent11 has ever "made" have been handed to him by the Estate when someone called the Estate requesting to buy certain property. Essentially, he is a high~priced order taker. These situations are not acceptable.

I intend to move forward aggressively on behalf of PENTEX FOUNDATION to force compliance with the FSA. As a member of GWB,

Exhibit 282 Page ~ of 2013-12-02 12;33 CANDYWAKTON 8172704383» 8006802804 P3/4

PENTEX FOUNDATION has restraints on what it can do; and, every timE: there is a vote in GWB that doesn't go your way, you yell foul. Further, there is a conflict of interest because an action must be brought again~·: Ken to force compliance with the FSA or to remove Ken as Executor, and Ken is a yoting member and beneficiary of GWB. Therefore, any action by GWB would involve using Ken's money to sue him. I cannot imagine how that would play out, or how the court would handle that scenario; therefore, we never moved forward. That is the main reaso:-: why PENTEX FOUNDATION has not been able to proceed with enforcement actions earlier.

All this adds up to the fact that PENTEX FOUNDATION simply docs not wish to remain a party in GWB. Under the terms of the Contract for Sale of Land and the laws of the State of Texas, it does not have tc.

Therefore, this is my formal notice to each of you that, as agent for PENTEX FOUNDATION, I am revoking PENTEX FOUNDATION's entl~e contribution to GWB, and demanding a split of its assets pursuant to the Contract for Sale of Land at page 4, Item #6, to wit:

11

1t Is hereby agreed that there shall be a business organization .

the exact type to be agreed upon at a later date, created by the parties hereto; and, that all revenue of any kind received from any of the property and/or assets covered herein shall be deposited into a bank account in that entity's name, and thcot ~.: expenses necessary to the continuation of revenue being paid tc. the parties hereto (i.e. property taxes on the royalties or property covered herein, and any necessary expenses such as well upkeep, etc.) shall be deducted and paid as required bef~vt;: the 70/30 division agreed to in this contract. Barcroft shall havt: a 50% vote in the operation of said business organization; and, the only function of said business organization shall be to facilitate the agreement in this contract. Any monies paid out c:·; said business organization, other than the agreed upon split

Exhibit 283 Page 3 of~.....,

CANDYWAKTON 8172704383:>> 8006802804 P4/5 2013-12·03 ,03;06

between the parties, shall be agreed upon by all parties hereto. The division shall be divided on a basis of 30% to Barcroft, 23.34% to Kenneth Vern Gibbs, 23.33% to Candace Walton Gibbs, and 23.33% to Howard Kirk Gibbs, at each instance of disper$al to the parties. Any party may demand a split of the assets of said business organization at any time."

The business organization described at page 4, item #6, and show!"! 1:i its entirety directly herein above, is GWB, which was created to Llfi:: this provision of the Contract for Sale of Land; therefore, the optior. tc demand a split of the assets applies to GWB and is enforceable.

I regret that your actions have necessitated this action. I h:.c hoped always to remain friends. It doesn 1t appear that was in the cards. After this, I will have no way to '1steal" anything that beior:gs T: you, or visit any other false threat your attorney has created in your mind on you; but, I intend to fully collect what belongs to PENTEX FOUNDATION.

PENTEX FOUNDATION is assigning its share of the Estate p,...oceea~ from the Contract for Sale of Land to the GBU Friends and Assoc;ates Trust, 410 Anderson County Road 154, Palestine, Texas 75801. PEl\ Tt).: FOUNDATION will receive regular mail, but not certified or registered mail or service, at 210 West Oak Street #151, Palestine, Texas 75801. Service and mail that must be signed for must be made through r·:£ home office: PENTEX FOUNDATION 1 Panama Gardens- Unit 2, Hade Lidice, Capira, Republic· of Panama; or, through me at Rancho Las Bris2:, San Marcos, Livingston, lzabal, Guatemala, Central America.

AI nn Barcroft Agent for PENTEX FOUNDATION

Exhibit

284 Page J1 of~~"i& ~ -;; 0..

141 C) as D..

Copies of this notice have been sent by Certified Mait Return Re,:::e:~t Requested~ to:

re""" 0 Kenneth Vern Gibbs Candace Gibbs Walton Howard Kirk Gi::.t£ fg 0 4212 Wheeler Street 500 Logan Dr. 4005 Vernon ·.;\.fa'-.; = C>

Ft. Worth, TX 76117 Azle 1 TX 76020 Keller~ TX 76243 J\ ...., J\

= .... 2; !;:; ,_ = z c

~ ~

:::! ~. 1.1"') N 0 00 ..:, C"l ; re

PENTEX FOUNDATION A Private Foundation of Panama, C.A.

December 18, 2013

To: Kenneth Vern Gibbs, Executor for the Estate of Bert Hughes Gibbs 4212 Wheeler, Ft. Worth, TX 76117

To: Rickey Brantley, Attorney for the Estate of Bert Hughes Gibbs 855 Texas St, Fort Worth, TX 76102

To: Scott Pelley, Attorney for the Estate of Bert Hughes Gibbs 707 West Washington, Sherman, TX 75092-5639

To: Jimmy Walker, Attorney, Permanent Guardian of Kathryn Gibbs 815 Walker, Suite 2401 Houston, TX 77002-5762

Dear Mr. Gibbs, Mr. Brantley, Mr. Pelley and Mr. Walker:

This notice is to inform the Estates of Bert and Kathryn Gibbs restates"] that the original 30% assignment titled 11Contract for Sale of Land, Mineral "Rflhts and Royalties, and all other Assets or Monies Received from the Estate of Bert Hushes Gibbs, Kathryn G. Gibbs, and/or the Mary L Houseworth Trust(s) or 'The Kathryn Houseworth Gibbs Irrevocable Trust'" ["CSLI#] to AI Barcroft has been transferred to GBU Friends and Assoc1ates Trust ["GBlY'] from GWB Family and Friends Trust ["GWB"] effective November 26, 2013; an·d, that all future distributions relating to this 30% assignment by Kenneth Vern Gibbs, candace Walton Gibbs and Howard Kirk Gibbs ["Gibbs Children") to AI Barcroft should be remitted directly to GBU, 410 Anderson County Rd 154, Palestine, Texas 75801.

Item number 6 of the CSL provided for the creation of a business organization that would receive and distribute the 70% portion of the Estates' distributions owned by Kenneth Vern Gibbs, Candace Gibbs Walton and Howard Kirk Gibbs [collectively "Gibbs Children"} along with the 30% assignment to AI Barcroft; and GWB, a revocable trust, was created on or about November 7, 2008, in accordance with that requirement. The CSL

Notice of Transfer to GBU Page 1 of3

Exhibit 286 Page___,/~---

further provided in the same paraaraph tbot an, party may demand a split of the assets of said business organization at anv time. PENTEX FOUNDATION, a settlor of GWB and current assignee of the 30% assignment from AI Barcroft, has revoked Its contribution to GWB and assigned its share of the assets residing in GWB to GBU. PENTEX FOUNDATIION hereby affirms that its share due from the Estates relating to the 30% assignment are now transferred to the GBU, and all future distributions relating to said 30% assignment by either Estate should be made payable to GBU.

In accordance with the Gibbs Family Settlement Agreement ["'FSA"], Kip Gibbs was to receive 25% of the Estates of Bert and Kathryn Gibbs with the remaining 75% going to the Gibbs Children. In accordance with the FSA and the CSL, 22.5% of the distributions by the Estates is owned by and related to this original 30% assignment. However, 2.46% of the original22.5% of the gross Estates is being paid directly to John Skotnik, leaving the assignee with 20.0496 of the gross distributions of the Estates.

THEREFOR!, FROM THIS DATE FORWARD, Notice and Demand is hereby made upon the Estates of Bert and Kathryn Gibbs, that from the date of this notice forward, that portion of all distributions made by the Estates of Bert and/or Kathryn Gibbs related to the original30% assignment made by the Gibbs Children to AI Barcroft, and currently being paid to GWB Family and Friends Trust, be distributed and made payable to; and, be sent directly to: GBU Friends and Associates Trust 410 Anderson County Road 154 Palestine, Texas 75801 The tax number for GBU Friends and Assodates Trust is 3&-7103561.

If either Estate disagrees with the calculation referred to herein, or needs any further verification of any documents related to this transfer, please notify me 1mmediately by e-mail to albertbarcroft@gmail.com. specifically identifying any mistake in the calculation and/or required verification; or, as to any reason why future distributions will not be made directly go GBU Friends and Associates Trust as requested.

Notic:e of Transfer to GBU Page2of3

Exhibit 287 Page ;J, of ---fi~Cj-~

I·· On behalf of At Barcroft, Pentex Royal Trust, PENTEX FOUNDATION, and/or RENHAW, INC., conjunctively and/or individually, I hereby stipulate that a photocopy of a scanned e-mail or fax of this document, and any attachments, may be used as originals for all legal purposes.

I hereby certify and affirm with my sJanature below under penalty of perJ&r/ under the laws of the United States of America that I am the lepl representative for Pentex Royalty Trust, PENTEX FOUNDATION, and RENHAW, INC.; and, as such, I have the authority to make alllepl decisions on their behalf. [28 USC§ 1746(1))

Further, Beverly Miller, Trustee of the GWB Family and Friends Trust, is in the possession of the original authorization for me to represent those entities; and, she will provide copies of same If necessary.

Dated and Signed this 18th day of December, 2013.

~~ Albert Lynn Barcroft In my personal capacity, and as legal representative for PENTEX FOUNDATION, Pentex Royalty Trust, and RENHAW, INC.

cc: Kenneth Vern Gibbs, Rickey J. Brantley, and Scott Pelley by United States Postal Service, Certified Mail, Return Receipt Requested to the addresses shown in the heading hereto.

cc: By e-mail to:

Rickey Brantley at rickey@rickeybrantley.com Scott Pelley at soelley@npwlawfirm.com

Notice of Transfer to GBU Page 3 of3

288 Page 3

289

fl!iDanswer estate Law To be answered by a Texas Trust attorney: Three individuals Resolved Question: To be answered by a Texas Trust attorney:

Three individuals (A, B, & C) sold to one OJ:her person (D) exactly 30% of their inheritance before the fact of the inheritance (for D's assistance in dealing with all problems and concerns of securing the inheritance).

B. The people did this by a contract for sale ["Contract"] executed and filed 1n the public record.

c. Under the terms of the contract, a busmess organization would be established so that all money to be paid from the inheritance pursuant to the contract would be deposited into the business organization.

D. The percentages due to each would be as follows: D= 30%, A==23.34%, B=23.33% and C=23.33%.

E. The language of the contract was as follows:

1. "It is hereby agreed that there shall be a busmess organization, the exact type to be agreed upon at a later date, created by the parties hereto; and, that all revenue of any kind received from any of the property and/or assets covered herein shall be deposited into a bank account in that entity's name, and that all expenses necessary to the continuation of revenue being paid to the parties hereto (i.e. property taxes on the royalties or property covered herein, and any necessary expenses such as 1vell :.JpKeep, etc.) shall be deducted and paid as required before the 70/30 division agreed to 1n this contl-act ... ; and, the only function of said business organization shall be to facilitate the agreement in this contract. Any monies paid out of said business organization shall be agreed upon by all parties hereto, and shall be divided on a 70/30 basis at each instance of dispersal to the parties. Any party may demand a split of the assets of said business organization at any time.''

F. The business organization that was created in compliance with the Contract was specifically a revocable trust. [The trust document specifically states: "This trust shall be revocable."]

G. Three of the parties (A, B, & C) to the contract became named settlors in the trust and contributed their entire share; and, the fourth party (D) to the Contract cont:ibuted his entire share as well, but was not a named settlor in the trust.

H. Under the definitions 1n the trust document, "settlor" is defined as:

1. "Settlor" means a person [or persons] who creates a trust or contributes property 2. If more than one person contributes property· to a trustee of a trust, each person IS a Settlor Of the portion of the property 1n the trust attributable to that person's contribution to the trust."

I. The proceeds from the contract were the only contributions to the trust.

J. The beneficial distribution within the trust was different tnan the settlor's contributions for several reasons; but the settlors or their mterests never o-,anged.

K. The person D decided to revoke his contribution to the trust.

Questions based on these facts

1. If a person (D) who was not specifically named as a settlor 1n the origmal trust document contributes property to the trust, in accordance with the above trust definition, does that person's contribution cause him to become a settlor of the trust with a revocable interest for his entire share of the contribution?

2. Can any settlor revoke all of his contribution, even if his defined beneficiary interest percentage in the trust was less than the percentage contribution he made?

a. For example, a settlor contnbutes 30% of tne total assets to a trust, but he receives only 25% of the beneficial distributions from the trust.

b. If he revokes his contribution, can he revoke the full 30% he contributed?

3. Can the underlying contract that caused the creation of the trust be enforced after the trust is created and m force and action?

Expert: RayAnswers Hi and welcome to JA. I am Ray and will De the expert help1ng you today.

Let's go through your questions here.

1. If a person (D) who was not specifically named as a settlor in the original trust document contributes property to the trust, in accordance with the above trust definition, does that person's contribution cause him to become a settlor of the trust with a revocable interest for his entire share of the contribution?

Answer: He would not be a settlor unless he either set up the trust or their was an amendment done adding him as a settlor.If the other parties agree you can amend the revocable trust here and make him a settlor to the trust.

2. Can any settlor revoke all of his contribution, even if his defined benef!Ciary Interest percentage in the trust was less than the percentage contribution he made7

a. For example/ a settlor contributes 30% of the total assets to a trust, t Exhibit ben~~~~ distributions from the trust.

Page

Here ·th~ terms of the trust control as far as the trust and again a trsut amendment could be done to allow for this.

Sample trust amendment.

''ttP . .·:v,w .lgqgroup .com/htm\/plan-ar,d- .:Jrospc:•- Qdr;REVOCABLE%20LIVING%20TRUST%20Amendment Form.pdf

b. If he revokes h1s contribution, can he revoKe the full 30°;o he contributed?

If the trust does not allow for this then no under the trust.He could sue under breach of contract here for the amount of contribution if the contract allows for that. You would have four years from the date of breach to bring suit.

http: I /codes.lp.findlaw .com/txstatutes/BC 112/G/_2. 725

3. Can the underlying contract that caused the creation of the trust be enforced after the trust is created and in force and action?

Yes the contract can be enforced as breach of contract suit.

I appreciate the chance to help you today.Piease let me know if you have more follow up.Thanks again.

RayAnswers, Attorney Category: Estate Law Satisfied Customers: 29595 Experience: Texas lawyer for 29 years in Estate law

Ray Answers and 7 other Estate Law Specialists are ready to help you

291 Page 3

Expert:· RayAnswers

~1, 0ere is the law that allows you to amenc the trust.

SUBCHAPTER C. REVOCATION, MODIFICATION, AND TERMINATION OF TRUSTS

Sec. 112.051. REVOCATION, MODIFICATION, OR AMENDMENT BY SETTLOR. (a} A settlor may revoke the trust unless it is irrevocable by the express terms of the instrument creating it or of an instrument modifying it.

(b) The settlor may modify or amend a trust that is revocable, but the settlor may not enlarge the duties of the trustee without the trustee's express consent.

(c) If the trust was created by a written instrument, a revocation, modification, or amendment of the trust must be in writing.

Expert: RayAnswers AI here is a very detailed article about amending trusts in Texas under the law.

http :Ji www .qalliganmannmq.com/documemstModlf!cation-and-Termination-of- Trusts-and-Trustee- Resignations. pdf

An amendment would allow the settlers to add a third one and to incorporate the contract details into the trust where needed.

Thanks again.

'-'::;i<; Your Own Estate Law Qu>.::stion

Customer: (D) is a foundation. It was added to the trust as follows:

3.1 Bendiciaries: The beneticiaries. and percentage of beneficial interests. are as follows:

Page

Candac~ Glbbs Walton: 25.011613% ofthe trust:

Howard K1rk G1bbs: 25.011613 "·o of the trusr:

Pentex Royalty Trust: 24.96516 ~·o of tht.: trust.

} .2 \. otinl{ Shares: Acuons and dec1sions con,·ermng the m1st ,;hall be governed by vote of the beneftciaries hereto. Sixteen (16) votes will represent a majority of rhe votes on any issue unless specitically ser herein at a different vote requirement. Each beneficiary shall have following votes in any matter of the trust for which a vote is called:

Kenneth \'em G1bbs: 5 votes:

Candace Gibbs Walton: 5 votes;

IIO\~ard Kirk Gibbs. 5 votes.

Pentex Foundation: 15 votes.

Peme.\ Fl)undat1on actual!) has 50°·o v·ote in matters concemtng the trust. Does that make a difference.

Exhibit 293 Page __~ __ of

294

Expert:' RayAnswers l)nl~ss the trust allows for the person D to retrieve his contribution or the beneficiaries all agree he woudl have to file suit against the trust to seek his contribution and add a breach of contract claim as well. He might be able to prevail on either one and the court might revoke the trust divide out the assets here and any otehr orders they feel neecssary to resolve the exit1ng trust.

unless ther is voluntary agreement here of all the beneficiaries such a suit would be necessary and the court here would decide whether he gets the full contribution back.Ther eis some uniqueness or case by case.

For example if there was real estae contributed to the trust and 1t went down and had less value the court would have to use its equitable powers for a fiar resolution.Base on what you present there is no language that allows a party to get out here short of a suit and the court revoking the trust or awarding him his contribution here.

This section really doesn't address any refund of contribution. Unless the trsut does the options are amend the trust again, resolve it with the benefic1ae1es, or a civil su1t to seek to have the court revoke it or resolve it.

Thanks for the follow up.

•• . !. .. '.' ••-.... :.• ~ ....

Customer: One last follow up in this case.

There is a dispute in this case as to the trust document. The document filed in the court case is a copy that has many flaws, including no date and some of the pages not being number in sequence. To perform on the trust if there is a dispute, would it be necessary for the moving party to actually present the original trust document?

Expert: R;;wAnswers

Yes either the original here or convince the copy is a trust correct and completed one.From what you present that might be hard to do here.

T_he _following are the legal requirements for a valid trust 1n Texas:

The Settlor must have a present intent to create a trust. According to the Texas statutes, a trust is created if the Settlor manifests an intention to create a trust. No specific words are required."

The Settlor must have capacity to convey assets to the trust. The Settlor has capacity if: he or she is over the age of 18 or has been lawfully married or a member of the armed forces, and

is of sound mind, which means he knows the nature and extent of h1s property, the persons who are the natural objects of his bounty, the disposition that he is making, and how these elements relate to form an orderly plan for the disposition of his property.

The trust must comply with the Statute of Frauds. A trust may be created orally through a declaration of trust; however, if it involves the transfer of real property, it must be in writing.

The trust must have a legal purpose. The terms of a trust may not require the trustee to commit a criminal or tortious act or an act that IS contrary to public policy.

The Settlor must identify the property covered by the trust and place it in the trust for the benefit of the beneficiary. The Texas statutes specify that a trust cannot be created unless there is trust property.

The trust must have a Trustee who holds legal title of property for the benefit of the trust's Beneficiaries. If there is no Trustee named, or if the Trustee that is named does not want to serve or cannot serve for any reason, the court can appoint a Trustee for the trust.

The trust must have ascertainable Beneficiaries. If the Settlor does not name the Beneficiaries with sufficient certainty, the trust will fail.

The trust my not violate the Rule Against Perpetuities, which says that an interest is not good unless it must vest, if at all, not later than 21 years after some life in being at the time of the creation of the interest, plus a period of gP.station.

AI thanks for letting me be of service.! wish you the best w1th all of this.

,.--·--------·- ----·--·-·-··--···---·---.--., i Ask Your Own Estate Law Questim' i \_ __ . _ _ _ _ . ·--~---··-------- - - - - - - - - - - · · - - - - - · · - ··-·-· -- .. -- !

Customer: Tha~u for good answers. Most not what I wanted to hear, but what I needed.

Page

You have answered my questions in the past, and you give much more complete answers than the others I have had. Is there any way to request you? I have more question about the Contract in which the 30% was sold to me, but those questions are unrelated to the trust questions and would require me to pay again.

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Exhibit 297 Page_9..J--_ of

298

' .

.Filters Used: Date Printed: 9/1412014 1 Tagged Record Email Report Time Printed: 11 :07AM Printed By: LAURA Form Format

Date 6/20/2014 Time 8:24AM 8:24AM Duration 0.00 (hours) Code Subject Re: Pentex Admissions Staff Christy L Lee Client Smith, Scott MatterRef Litigation - Pentex Foundation vs. G MatterNo From smithlaw@ainnail.net To Christy Lee; Howard Gibbs CCTo BCCTo Reminders (days before) Follow N Done N Notify Y Hide N Trigger N Private N Status

Custom1 Custom3 Custom2 Custom4 Christy, I am fine with accepting email as a form of service, provided we also agree to acknowledge receipt by email. Also, if you want discovery to end on December 3rd, that is fine with me. I am not sure the Judge actually was addressing discovery, but was just expressing her view that the case be ready to go by that date. I have modified the proposed scheduling order, and have attached it. Enclosed please find the Response to the Request for Disclosure by Pentex Foundation. With respect to depositions, I will not be able to agree to have the entire board of Pentex deposed. That is harassing and outside the scope of permissible discovery. Moreover, unless and until Mr. Barcroft is the designated corporate representative of Pentex, I cannot produce him. He may be a fact witness, but he is not my client We have not yet determined who will be the corporate representative for Pentex in this litigation, but will do so in the near future. Regards, Sco..

SCOTTSMlTH ATIORNEY AND COUNSELOR AT LAW

E-MAIL: smithlaw@airmailnet 120 SOUTH CROCKETT STREET FACSIMILE: (903) 870-1446 P.O. Box354 TELEPHONE: (903) 868-8686 SHERMAN, TEXAS 75091-0354

August 5, 2014 Honorable Pat Ferchill Judge, Tarrant County Probate Court Number Two The Old Courthouse 100 W. Weatherford, Room 220A Fort Worth, Texas 76196 RE: Candace Walton, et al. v. Beverly Miller, Trustee, et a!.; Cause Number 2005-0000126-2-D in the Probate Comt Number Two of Tarrant County, Texas.

Dear Judge Ferchill:

As you may recall, I appeared for a special appearance on behalf ofPentex Foundation on July 31, 2014. In connection therewith, I testified regarding a motion to show my authority to represent Pentex Foundation. At that time, I was unsure of the source of payment of my initial retainer. I have reviewed my records and the payments were each in the sum of$5,000 from Pentex Royalty Trust and Mr. Albert Barcroft. I am also attaching a copy of a resolution from Pentex Foundation regarding my engagement as their counsel. I thank you for your attention to this matter.

TSS/bhs

cc: Christy L. Lee, Esq.; Howard Kirk Gibbs, Pro Se.

,-"'

Exhibit ,_ 299 Page _ __

300

MINUTES OF THE BOARD OF DIRECTORS'

MEETING OFI'ENTEX FOUNDATION

A meeting of the Foundation Council ofPENTEX FOUNDATION, organi:l:ed according to the laws ofthe Republic of Panama and registered to microjacket twenty nine thousand five hundred and thirty six (29536), document one million three hundred fifty four thousand eight hundred ninety three (1354893) of the Mercantile Scclion of the Public Registry, it was celebrated in tl1e city ofPmmmn, Republic ofPnnnma on the fourth day (411o) of August oftl1e year lwo thousand and fourteen (2014) at 10 o'clock in the morning (10 a.m.).

It was n meeting of all the known Directors:

Mrs. ANGELL! MARTHA POLANCO CARRASCO, Mr. CARLOS ALBERTO RIVADENEIRA ESCUDERO and FERNANDO ELIAS BARAHONA PEREZ who had prior waived the call.

The Chairman was Mrs. ANGELLI MARTHA POLANCO CARRASCO, and the Secretary tvir. CARLOS ALBERTO RIVADENETRA ESCUDERO, both a~ holders of said positions.

The quomm having been confirmed, the Chairman opened the meeting sll\ting thatn question has emerged as to the authority of Mario Guilermo Hurtarte Arrivillaga, the Managing Director, Legal Allairs ofPENTEX FOUNDATION, to hire legal counsel in the United States for affairs requiring litigation. Specifically, the hiring of one Scott Smith, Attorney at Law, to represent PENTEX FOUNDATION in ongoing litigation involving PENTEX FOUNDATION in Fannin County, TexiiS, U.S.A.

Upon motion presented, duly seconded, the following resolution was unanimously approved:

IT IS HEREBY RESOLVED:

That the Board ofPENTEX FOUNDATION verifies that Mario Guilermo Hurlllrte Arrivillllgn is authorized to hire legal counsel on behalf ofPENTEX FOUNDATION to litigate any necessary legal mailers that might arise in the United States. Ftlrther, it is resolved that Mllfio Guilcnno Hurtarte Arrivillaga, as Managing Director, Legal AfThirs ofPENTEX FOUNDATION, was authorized to sign the "AGREEMENT FOR LEGAL SERVICES" hiring Scott Smith, Attorney At Law, to represent and provide legal services to PENTEX FOUNDATION on May 5, 2014, in Cause Number CV-14·41665 in Fannin County, Tcxns, U.S.A. Further, by this resolution, PENTEX FOUNDATION conlirms Scott Smith, Texas State BllfNumber 18688900, as its nttorncy in Cause Number CV-14-41665 in Fannin County, Texas, U.S.A.; and, thnt Scolt Smith hns represented PENTEX FOUNDATION in Cause Number CV-14-41665 in Fannin County, 'lbxns, U.S.A., since May 5, 2014.

By this resolution, it is further resolved that Mario Guilermo Hurtarte Arrivillaga, the Managing Director, Legal Affairs ofPENTEX FOUNDATION, is authorized until further notice to make any further necessary changes in legal representation for PENTEX FOUNDATION in any legal proceedings in the United States, and to make any decisions alll:cling PENTEX FOUNDATION in any ofthos~: legal matters. The authority granted Mario Guilermo Hurtarte Arrivilluga is concurrent with, and does not limit or change, the authority granted Dmul)' R. Unger through 11 Limited Power of Attorney from PENTEX FOUNDATION in 11 preceding resolution.

There not being any other matter to attend the meeting was aqiourned at ele\•en (II :00) a.m. on the above mention~:d date.

The President, ANGELLI MARTHA POLANCO CARR..o\.SCO,

Exhibit

The Secretary, CARLOS ALBERTO RlVADENEIRA ESCUDERO.

The undersigned, Secretary of the foundation named PENTEX FOUNDATION by this means certifies thnt the above minutes is a true copy of irs originul. It ugrecs with each nnd C\'ery one of its parts as the one that remains in the Book ofMinu(es of the foundation.

The Secretary, CARLOS ALBERTO RIVADENEIRA ESCUDERO.

301 Page __3

___

NO. CV-14-41665

PENTEX FOUNDATION, § IN THE DISTRICT COURT OF Plaintiff § § ~ § § FANNIN COUNTY, TEXAS KENNETH VERN GffiBS, CANDACE § GIBBS WALTON and HOWARD § KIRK GIBBS, Defendants § 3361h JUDICIAL DISTRICT

PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GffiBS

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

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

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

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

RESPONSE TO DISCOVERY REQUESTS

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

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

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

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

Exhibit-~,/ f /a, "d 302 Page I ~'f/ -..J...-- ,u

175.

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

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

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

RESPONSE: Objection. This request is overly broad and outside the scope of discovery to the extent it requests "letters, emails, bank records, correspondence, and accountings related to Albert's involvement in your formation." Subject to this objection, please see the documents attached hereto as Plaintiff/Interpleader 00001-00033.

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

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

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

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

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

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

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

PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page2

303 Page

304

with Danny Unger concerning GBU Trust.

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

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

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

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

RESPONSE: Pentex Foundation has no documentation in its possession responsive to this request. None REQUEST FOR PRODUCTION NO. 10: Produce any communication dating back to September 1, 2008, including letters, tape recordings, or emails, that you have had with Rickey Brantley or Scott Pelley concerning the Estate's attorney fees.

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

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

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

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

RESPONSE: Pentex Foundation has no documentation in its possession

PENTEX FOUNDATION'S RESPONSE TO DlSCOVERY FROM KENNETH GIBBS Pagel

305

responsive to this request.

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

RESPONSE: Please see Plaintiff/Intervenor 000123,000034.

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

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

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

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

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

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

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

PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page4 with Albert concerning Pentex Trust.

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

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

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

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

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

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

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

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

RESPONSE: Pentex Foundation objects to any such communications protected pursuant to the "joint defense doctrine" recognized in TEX. R. EVID. 503(b)(1) and such cases as Ryals v. Canales, 767 S.W.2d 226,228 (Tex. App.-Dallas 1989, orig. proceeding). Subject to this objection, Pentex Foundation has no documentation in its possession responsive to this request other than as may be produced herewith.

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

- -- PENTEXFOUNDATION'SRESPONSETODISCOVERYFROMKENNETHGIBBS PageS

306 Page

307

base the claims against Candy and Ken in your Original Petition.

RESPONSE: Pentex Foundation objects to this request as overly broad and fails to direct Plaintiff to any class or type of documents. See, Loftin v. Martin, 766 S.W.2d 145 (1989). Subject to this objection, please see the documents attached to the Motion for Partial Summary Judgment submitted in this case.

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

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

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

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

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

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

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be produced herewith.

REQUEST FOR PRODUCTION NO. 26: Produce all documents and communications dating back to September 1, 2008, including letters, tape recordings, or emails, that you have had with Rickey Brantley concerning the Estate's distributions to Heirs and the calculations of the Heirs' attorneys' fees.

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

REQUEST FOR PRODUCTION NO. 27: Produce all documents and communications dating back to September 1, 2008, including letters, tape recordings, or emails, that you have had with Scott Pelley concerning the Estate's distributions to Heirs and the calculations of the Heirs' attorneys' fees.

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

REQUEST FOR PRODUCTION NO. 28: Produce any communication dating back to September 1, 2008, including letters, tape recordings, or emails, that you have had with any representative of JW Operating Company concerning you yourself, Albert, GWB Trust, Pentex Trust, and GBU Trust.

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

REQUEST FOR PRODUCTION NO. 29: Produce any communication dating back to September 1, 2008, including letters, tape recordings, or emails, that you have had with any representative of Trio Consulting and Management, LLC, concerning you yourself, Albert, GWB Trust, Pentex Trust, and GBU Trust.

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

REQUEST FOR PRODUCTION NO. 30: Produce any communication dating back to September 1, 2008, including letters, tape recordings, or emails, that you have had with any representative of Devon Energy concerning you yourself, Albert, GWB Trust, Pentex Trust, and GBU Trust.

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

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

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Representative for both entities; whether you or Pentex Trust was fonned first; the management associated with Pentex Trust in Texas, as effected from a Panamanian locale; the manner in which you detennine tax obligations; and arrangement with Pentex Trust concerning voting rights in GWB Trust ANSWER: Pentex Foundation objects to this interrogatory as outside the scope of pennissible discovery and overly broad. Interrogatories may be used to ascertain basic legal and factual claims and defenses, but may not be used to force a party to marshal evidence." See, Rule 197 of the Texas Rules of Civil Procedure, at comment 1. Subject to this objection, Pentex Foundation answers as follows: Pentex Royalty Trust is a trust domestic to the United States that was created as a trust to take in all revenue due from taxable sources within the United States, pay any U.S. taxes or other obligations due, and then distribute its remaining beneficial interests. Pentex Foundation is the sole beneficiary of Pentex Royalty Trust. Pentex Royalty Trust has a paid trustee who is not associated, or familiar with, any other phase ofPentex Foundation. The tax obligations are figured by computing and filing a Return 1042 with the Internal Revenue Service meeting the requirements of the Internal Revenue Code. The voting rights issue was always a problem because the purported trustees of GWB trust never had a clear and defined way of doing anything. For that reason, Pentex Foundation assigned it voting shares by proxy to Jim Walton as long as he was the purported trustee. We have no record of any official votes after Beverly Miller became the purported trustee.

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

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

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' .

Pentex Foundation only as specified in the general objections:

Pentex Foundation purchased an interest in the Contract for Sale that Albert Barcroft originally owned. It was mutually advantageous to continue to work with Albert to bring the terms of the contract to conclusion, and he served and serves on our behalf in the matter. To the knowledge ofPentex Foundation, Albert had no responsibilities to pay any attorneys other than John Skotnik in the matter, and such was not shown in any documentation presented to Pentex Foundation. When Pentex was forced to hire new counsel in the case, it did not have sufficient funds in the United States to pay the full retainer. Mr. Barcroft did. Pentex Foundation gave Mr. Barcroft money here, and he sent that money to Scott Smith in the United States. Mr. Barcroft definitely made Pentex Foundation aware that he thought there was a problem in the way proceeds were being paid by GWB Trust, if that qualifies as instigation. In brief, Barcroft was our express liaison with GWB trust, whatever it is.

INTERROGATORY NO. 3: Explain the reasons you came to believe that contingency fee attorneys were deducting their fees from the total due you, Ken, Candy, and Howard Kirk, then issuing one check to GWB Trust, including the rationale for believing that in excess of$ 1 million in attorney fees were due from Ken, Candy, and Howard Kirk; when and how you arrived at these alleged facts; and the reason that Beverly Miller was instructed to assign 57.19% interest in GWB Trust to GBU Trust, when you were entitled to a far smaller percentage.

ANSWER: Pentex Foundation objects to this interrogatory as outside the scope of permissible discovery and overly broad. Interrogatories may be used to ascertain basic legal and factual claims and defenses, but may not be used to force a party to marshal evidence." See, Rule 197 of the Texas Rules of Civil Procedure, at comment 1. Subject to these objection, Pentex Foundation answers as follows, and under a defmtion of"you" and "your" to refer to Pentex Foundation only as specified in the general objections: The percentage due Pentex Foundation under the Contract for Sale. Barcroft's share was 30% of everything Ken, Candy and Howard received. Ken, Candy and Howard each received 25%, for a total of75%, of the estates. Of the 75%, Pentex Foundation owned 30%, equaling 22.5% of everything distributed by the estate (75% X 30%=22.5%). The estate distributed mineral interests to GWB Trust equaling 35.04% of the total minerals owned by the estate. It also distributed 2.46% directly to John Skotnik in payment for his services as attorney (an amount due solely by Barcroft). Of the 35.04% distributed to GWB Trust, Pentex Foundation owned 20.04% (22.5% minus the 2.46% already distributed to Skotnik). 20.04% is 57.19% of35.04%; thus, PentexFoundation owned 57.19% ofthe

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minerals transferred to GWB Trust by the estate.

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

ANSWER: Pentex Foundation objects to any such communications initiated after the anticipation of litigation and/or protected pursuant to the "joint defense doctrine" recognized in TEX. R. EVID. 503(b)(l) and such cases as Ryals v. Canales, 767 S.W.2d 226,228 (Tex. App.-Dallas 1989, orig. proceeding). Pentex Foundation objects to this interrogatory as outside the scope of permissible discovery and overly broad. Subject to these objection, Pentex Foundation answers as follows, and under a defmtion of "you" and "your" to refer to Pentex Foundation only as specified in the general objections: Pentex Foundation has had no such communications with Howard Kirk.

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

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

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

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

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Exhibit 311 Page 10

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

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

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

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

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

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

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

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

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

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

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

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

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312 Page Exh~~~:t~ /i percentages specified in the GWB Trust document.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Exhibit 314 Page /3

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

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

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

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

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

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

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

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

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

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

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

RESPONSE: Pentex Foundation objects to this request as multifarious and

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speculative (when speaking about future events which may or may not occur). Pentex Foundation objects to this request as outside the scope of legitimate discovery.

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

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

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

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

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

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

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

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

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

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

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

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transferred 57.19% interest from GWB Trust to GBU Trust.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

RESPONSE: Denied.

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

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

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

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

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

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was inappropriate, as Ken individually does not have the authority to control the Estate's distributions to the Heirs.

RESPONSE: Denied.

REQUEST FOR ADMISSION N0.43: Admit or Deny that Renhaw, Inc., received your interest in GWB Trust, then transferred it back to you.

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

REQUES1FORADMISSIONN0.44: Admit or Deny that you were effectively rendered a "nonentity" with regard to GWB Trust, because of the transfers as follows: Albert Barcroft> Renhaw > GWB Trust.

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

REQUEST FOR ADMISSION NO. 45. Admit or Deny that Howard Kirk and you worked together to remove assets from GWB Trust which did not belong to you in order to benefit unjustly from those assets.

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

REQUEST FOR ADMISSION NO. 46: Admit or Deny that prior to around November 2013, you did not question the distributions from GWB Trust.

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

REQUEST FOR ADMISSION NO. 47: Admit or Deny that you issued instructions via Albert to Beverly Miller concerning the administration of GWB Trust.

RESPONSE: Ojbection. This request is ambiguous. Subject to this objection: Denied.

REQUEST FOR ADMISSION NO. 48: Admit or Deny that you occasionally hired and paid Danny Unger to perform minor accounting work, as well as research.

RESPONSE: Admit that he did some accounting for Pentex Foundation.

REQUEST FOR ADMISSION N0.49: Admit or Deny that you were aware that you were entitled to less than a quarter of the proceeds in GWB Trust, after

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320

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

RESPONSE: Denied.

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

RESPONSE: Denied.

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

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

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

RESPONSE: Denied.

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

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

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

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

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

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

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

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

RESPONSE: Denied.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

RESPONSE: Admit that the beneficiaries were informed.

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

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

PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page21

Exhibit

322 Page .2/

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

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

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

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

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

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

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

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

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

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

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

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

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

PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNE1H GIBBS Page22

Exhibit 323 Page ).2

324

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

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

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

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

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

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

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

RESPONSE: Denied.

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

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

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

Exhibit

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

RESPONSE: Denied.

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

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

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

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

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

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

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

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

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

RESPONSE: Admit.

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

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

325 Page ,) "'

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

REQUEST FOR ADMISSION NO. 85: Admit or Deny that Albert drafted the GWB Trust agreement.

RESPONSE: Objection. This request assumes facts in dispute, to wit: whether there even is a GWB Trust agreement. Subject to this objection, Pentex Foundation has made reasonable inquiry and the information known or easily obtainable is insufficient to enable it to admit or deny this request.

REQUEST FOR ADMISSION NO. 86: Admit or Deny that the Estate is being mismanaged.

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

REQUEST FOR ADMISSION NO. 87: Admit or Deny that the Estate's calculations concerning the percentages of the Heirs' interest in the Estate impact GWB Trust.

RESPONSE: Objection. This request is confusing and vague, and seems to suggest a pure question of law. Subject to this objection, Pentex Foundation has made reasonable inquiry and the information known or easily obtainable is insufficient to enable it to admit or deny this request.

REQUEST FOR ADMISSION NO. 88: Admit or Deny that you have a true and correct copy of the CSL.

RESPONSE: Admit.

REQUEST FOR ADMISSION NO. 89: Admit or Deny that you have a true and correct copy of the FSA.

RESPONSE: Admit we believe we do.

REQUEST FOR ADJvllSSION NO. 90: Admit or Deny that, according to the FSA, Albert is responsible for paying his own attorneys' fees.

PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page25

Exhibit 326 Page JS of

RESPONSE: Objection this calls for a pure legal conclusion. Subject to this objection, admit as to our understanding of that to be the case.

REQUEST FOR ADMISSION NO. 91: Admit or Deny that Candy and Ken are not responsible for any tortious interference between GWB Trust and yourself, as neither Candy nor Ken ever interfered with the appropriate distributions to you of approximately one-quarter (1/4) interest in GWB Trust.

RESPONSE: Object to this request as multifarious and vague. Subject to these objections: Denied.

REQUEST FOR ADMISSION NO. 92: Admit or Deny that Albert breached the FSA.

RESPONSE: Denied.

REQUEST FOR ADMISSION NO. 93: Admit or Deny that Albert breached the CSL.

RESPONSE: Denied.

REQUEST FOR ADMISSION NO. 94: Admit or Deny that you are bound by the conditions of the FSA.

RESPONSE: Admit that some of the provisions of the FSA apply to Pentex Foundation and any other successor to the interest originally conveyed to Mr. Barcroft.

REQUEST FOR ADMISSION NO. 95: Admit or Deny that Danny Unger has been your Legal Representative since the inception of this lawsuit.

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

REQUEST FOR ADMISSION NO. 96: Admit or Deny that Albert, not Danny Unger, initiated this lawsuit on your behalf.

RESPONSE: Objection. This request is outside the scope of legitimate discovery. It invades the protections for communications made after the anticipation oflitigation, the attorney/client privilege and work product communication.

PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIDBS Page26

327 Page

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

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

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

RESPONSE: Denied.

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

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

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

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

Respectfully submitted,

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

PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page27

328 Page

CERTIFICATE OF SERVICE I do hereby certify that a true and correct copy of the above and foregoing document was served, by certified mail, return receipt requested number 7009 2~50 0000 2311 4187 toChristy L. Lee, Esq., of Law Offices of Christy Lee, P.C., 777 Main Street, Suite 600, Fort Worth, Texas 76102, and to Howard Kirk Gibbs, ProSe, at 4360 Western Center Blvd., Suite Ft Worth, Texas 76137, on this the 3"' day of September, 2014.

PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIDBS

329 Page J~

Unsworn Delcaration Pursuant t9 TEX. CIV. PRAC, & REM. CODE § 132.001

-~-;:c-.K.=~--

. I reside at 1 am the designated representati e of P ntex Foundation, that I have read the above and foregoing Answers to Interrogatories and subscribes to the same on behalf ofPentex Foundation;· that said· responses, subject to inadvertent or undiscovered errors, are based on and therefore limited by the records and information still in existence, presently recollected and this far discovered in the course of the preparation of these responses; that, consequently, l reserve the right to make changes in responses if it appears at any time that omissions or errors have been made therein or that more accurate information is available; and that subject to the limitations set forth herein, the said responses are true and correct and within my personal knowledge. I have been advised that Rule 1J7·~(d)(f}Ag.~s. nel=. ~eqt}~r~::ttt~t~I swear to interrogatory answers abou' persq11s ,"Y:~.tti kp_~-~·lf!4S~.·.o(,r.~*~y~~-:f~.9Y~t'!t'~~l witnesses or legal contentions. Since I am not an attorney, I therefore do not swear to the truth of any interrogatory answers containing·. inf.<mnatj(}l}...~bqut persons with knowledge of relevant facts, trial witnesses 'or legal contentions. I declare under penalty of;perj1,1ry that the foregojl)g:insi!ufl}e~t i~ . Qil.l~aJ5{i,porr~~I;:~ --:.~~·:,- .\ ~-~;·· .' ·· .- ;, .

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Exhibit 330 Page '*q

'I

PLAINTIFF'S EXHIBIT

F

State"lent Given Under Penalty of Perjua

I, Albert Lynn Barcroft, being born on August 20, 1946 In Rotan, Texas, give the following statement under penalty of perjury under the laws of the United States of America.

I am a resident of Guatemala, Central America, and have resided here for more than five (5} years without Interruption. I am aware that I have been asked to attend -a hearing and other legal proceediifgs-ln -th-eUriltecfStates:- Thereby certlf\i ana -affirm-the foiiowfngforthe record:

1. I am not an employee of PENTEX FOUNDATION;

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

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

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

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

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

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

Further, I certify under penalty ot' perjury under the prevailing laws of the State of Texas that the statements In this document are true and correct, and not intended to mislead.

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

y

Agent/Legal Representative PENTEX FOUNDATION

Exhibit

331 Page_...../t.--

332

Dr. Leonel Antonio Ramirez Montenegro MEDICINA INTERNA YELECTROCARDIOGRAFIA Clfnlca Medica CONSULTORIO Cllnlca Casa de Los Almendros Los Almendros..• S•iudy~ Calle de Atras 9-66 Morales lzabal Tel.: 7823·2060 EMERGENCIAS: 5412·0504 • E·mail:leoram_chey@yahoo.com

El infrascrito Dr. LEONEL ANTONIO RAMIREZ MONTENEGRO, medico y cirujano colegiado activo numero ocho mil ciento treinta y cuatro, egresado de Ia Universdiad de San Carlos de Guatemala CERTIFICA: Que dentro de los archives 1 ' ''

de este consultorlo aparece reglstro del senor ALBERT LYNN BARCROFT. Quien padece HIPERTENSION ARTERIAL,· .FIBRILACION AURICULAR CRONICA Y .OSTEOARTROSIS DEGENERATIVA [)€. RODILLAS, por lo que no puede viajar debldo su codidon de salud, Ia t~af le impide movilizarse por si mismo, asf como tamblen representa rlesgo para su vida dado que problema cardiovascualar he emperado en los ultlnios meses. A solicitud de Ia parte interesada se extiende Ia presente al veintlocho de Agosto del dos mil catorce .

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c.-.-_._.e-""-c.---r::u.-z.e~ , Dr. Leonel Ramirez. ~ontenegro ·"·.

Medicina 1.n!¢na { Col. 8,134 ""

I EXHIBIT

D

I Exhibit

Page_""'j_

333

Altho!Jgh an exact interpretation from Spanish to English of a document of this sort is virtually impossible, below is a general interpretation into English of the foregoing medical report and evaluation for your convenience:

- - - -- -

--------------------

-~

---- . ··------ -·--

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

Page

http:ljedition.channeiSbelize.com/archives/29963

Mar 23, 2010

GJ:eat f!~cape ow!ler faked_!teart attack and wreckage wreaking havoc

, he Great Escape, the luxury yacht, that damaged Belize's pristine barrier reef on November thirtieth, 2009 is gone but not forgotten. There were reports that it was leaking fuel into the sea and that it would have been moved. Well, the yacht is no longer at the site where it grounded. It wasn't a salvage company, but Mother Nature herself and currents have drifted the wreckage towards Punta Manabique. Boaters in the Bay of Honduras have been advised to be on the lookout because it could cause an accident. When we last reported on the incident, the Department of Environment indicated the owner of the vessel, Albert Barcroft, had suffered heart failure and had to be rushed to Guatemala to seek treatment. However, according to Roy McNett, the editor of an online newspaper in Rio Dulce, Guatemala, AI Barcroft has taken up residence in Rio Dulce and has admitted that he faked his heart attack so he wouldn't be taken to Belize City. McNett said that at the website's blog, 5i.';'LL"Lt.J!?.u.lf,:.~.f..D.2U:~, c-.~:::'• Barcroft has indicated that the authorities in Belize have not held him responsible for the grounding. Via Phone: Roy McNett, Editor, Rio Dulce Chisme Vindicator

Exhibit -

334 Page_-~--

,.---.-.

!-"_· :·

"We are located in Rio Dulce and there is quite a large boating community out here, probably close to four hundred boats that are here. And many of tl1e boaters hsre are upset about what happened. Of course there's always rumors that perhaps he did it intentionally to collect the insurance. That has not been verified at all. " Jose Sanchez "The last we heard of Albert Barcroft, he had a heart attack and he went to Guatemala and left there. What do you actually know?" Via Phone: Roy McNett "He told me he faked the heart attack so he wouldn't have to go onto Belize City." Jose Sanchez "So he didn't have a heart attack?" Via Phone: Roy McNett "He did not have a heart attack. "

Sanchez Exhibit

335 Page-"'-..}-

,............, ~'""""'· __

"And what has become of the boat. It's no longer where it was near the Sapodilla Cayes where it landed on the reef?" Via Phone: Roy McNett "That's the sad thing about it. The boat is now floating with the tide between Belize and Guatemala. T11ere's a photo on our website t/1at shows the boat out there. It's a navigation hazard, it's very dangerous to be left there." Jose Sanchez "Since you spoke to Mister Barcroft, has he accepted responsibility for landing his boat on the reef?" Via Phone: Roy McNett "He's written in the blog that he has no fines at all, during the inquiries, he was not held responsible or negligent.'·' Jose Sanchez "So would you be surprised then to find out the investigation is not complete and it is a legal matter? So nothing has been resolved as yet." Via Phone: Roy McNett ;'We are surprised that Belize 11as not as yet fined him for the damage to the reef. He is here in Rio Dulce and he's buying some land here now." We have been unable to reach Martin Alegria, Chief Environmental Officer, for comment. However, the editor of Rio Dulce Chisme Vindicator happily provided us with Albert Barcroft's email address. So if the authorities or anyone would like to express their feelings about the incident, the Great Escape's owner can be reached at AIBarcroft@leonardonline.net Be Sociable, Share!

• • • • •

• •

• • .• • .. ~- .

Viewers please note: This Internet newscast is a verbatim transcript of our evening television newscast. Where speakers use Kriol, we attempt to faithfully reproduce the quotes using a standard spelling system.

Exhibit T 336 Page 3

-~

1. maddyvandijk says:

The boat was a problem in Beiize so why the Belizean authorities didn't immediately charged the man before letting him go? And why didn't the authorities removed the boat from the waters? This case should have been dealt with quick response instead of them running around in circles. If the man was out for money from his insurance company, why would he care about your reef? The man saved millions by avoiding going to Belize, kind of the point he was trying to make, really. So I doubt if this matter will ever be resolved to anyone's satisfaction.

2. Criss says:

It is ridiculous that the Belizean Authorities have not completed a report on this incident which is now almost 4 months old. What is more horrifying is that Belize does not have a plan in place of removing shipping vessels when they run aground on the reef. You would think that because the reef is one of our most prized possessions on this side of the world, we would do everything to try and safeguard and protect it. I would think that having a plan to remove vessels would be the first prioirty especially since we formed a Coast Guard crew. Sad that our politicians don't think of our jewel as others do.

3. Rufus Cayetano says:

Only in Belize.

4. read the Great Escape Owner's lies says:

This rio dulce website has AI Barcroft's lies in it. HE makes his posts as "The Great Escape Freshman River Rat". its funny his lies. check it out here ....

·.~-.-- ·~, .• .\ ;_

5. avidreader says:

i'm gonna write AI Barcroft on the behalf of Belizeans since the dept. of environment is moving slow.

Exhibit

337 Page 'i of

CAUSE No. CV -14-41665

PI:::NTEX FOLJN[)l\TION )

PLAINTIFF, )

)

vs. )

)

KENNETH VERN GIBBS: AND ) CANDACE GIBBS WALTON: AND ) HOWARD KIRK Gll3BS, )

DEFENDANTS. ) FANNIN COUNTY, TEXAS

DEFENDANTS' MOTION FOR LEAVE OF COURT TO FILE THIRD-PARTY PETITION

Come now. Ddendants Kenneth "Ken'" Vern ()ihhs and Candace "'Candy"" Walton.

through their Counsel of Record, Law Offices of Christy Lee, P.C., and, pursuant to Rule 38 of

the Texas Rules of Civil Procedure, respectfully move the Court for leave to file a third-party

petition naming Albert Barcroft as a Third-Party Defendant in this Cause. Evidence proves, and

Ken and Candy know. that Albert is the alter ego of Pentex Foundation ("Pentex"), the original

Plaintiff in this Cause. Evidence proves, and Ken and Candy also know, that Albert is the alter

ego of GBU Friends and Associates Trust ("GBU Trust"), the fntervener who insists that it is the

true party of interest in this Cause. Until March 2014. Albert signed his fonnal communications

(and most of his informal communications) to Ken and Candy as "'Legal Representative'' of

either Pentex or Pentex Royalty Trust or GWB Trust or CJBU Trust or Renhaw. Inc. At times

Albert proclaimed himself Legal Representatives for some or all the entities. Justice cannot be

served unless Albert is named to answer for the events he engineered which led Pentex to tile

this suit and GBU Trust to intervene in this suit.

DEFENDANTS' MOTION FOR lEAVE OF COURT TO FILE TIIIRD-PARTY PI"'ITION AND ALTii:R [(iO CAl!SJ:No. CV-14-41665 33'§'/c.\' Fot:.\'ll.l'/10\ 1·. G//i/1.\ 1:'1'.·11 .. -I-

l. FACTS

1. On April 28, 2014, in response to Pentex's Original Petition, Ken and Candy filed

their Motion to Show Authority, Motion for Change of Venue, Original Answer, Affirmative

Defenses. Original Counterclaim. and Rule 13 Motion for Sanctions. Section V, Defendants'

Counterclaim, noted that Albert was also known as Pentex. See Para. 22.

2. On July 28, 2014, Ken and Candy filed their First Supplement to Original Answer

and Affirmative Defenses ("the First Supplement"). Part IV, the First Supplement, contended

that Albert is the "responsible third party." within the meaning of Texas Civil Practice and

Remedies Sec. 33.011(6).

1

3. According to formation documents, Pentex was established on May 21, 2008 -

about three (3) years following the execution of the Contract for Sale of Land (''the CSL''),

which Albert illegally drafted. 2 and which concerned assets or the Estate of Bert Hughes Gibbs

("the Estate"); and about four (4) months prior to the execution of the Family Settlement

Agreement ("FSA"), which specified the terms under which ce11ain parties would receive their

distributions from the Estate, including the creation of an entity to receive the distributions.

4. Albert's status as regards Pentex is well-documented. At the time of Pentex 's

creation, the Internal Revenue Service ("the I.R.S.") was actively pursuing Albert for delinquent

taxes. Albert confided to Ken and Candy that he created Pentex to avoid seizure of his assets by

the I.R.S., and he assigned Pcntex his GWB Trust interest.

1 Pentex was not registered in Panama until June 26, 2014.

2 It is an undisputed fact that Albert drafted the CSL. Albert is not a lawyer and was practicing law without a license.

Albert threatened Ken and Candy not to obtain legal counsel to review the CSL prior to signing it.

DEFENDANTS' MOTION !·OR LEAVE OF COllin TO riLE THIRD-PARTY PETITION AND ALTER Ec;o 1'1"9X FUUNOtf!"ION V. GIBJJS; ETA!..

5. Through discovery, it has been determined that, in late 2008, Albert provided all

communications with the Estate concerning any and all attorney fee distributions for Ken and

Candy. Albert signed all the documents associated with these distributions and distributions to

G WB Trust. Albert signed all these documents as the Legal Representative for Pentcx.

6. From the moment Pentex was established, Albert portrayed to everyone, including

Ken and Candy, that he was the Legal Representative for the entity.

7. By 2013, as a result of Ken and Candy's inquiries concerning its administration,

communications among GWB Trust members had irrevocably broken down. On November 25,

2013, acting as Legal Representative of both Pentex and Renhaw, Inc., which he described as a

Panamanian, wholly-owned subsidiary of Pentex, Albert issued to the Beneficiaries a formal

revocation ofGWB Trust. See Exhibit A.

8. On November 28. 2013, upon receiving instructions from Albert as Legal

Representative of Pentex, Trustee Beverly Miller transferred 57.19% interest in GWB Trust to

GBU Trust.

9. On December 18, 2013, Albert sent to the Estate Counsel a letter on behalf of

himself, Pentex Royalty Trust, Pentex, and Renhaw, Inc, "conjunctively and/or individually,"

stating that he was the Legal Representative of the various parties, and as such he had "the

authority to make all legal decisions on their behalf." See Exhibit B.

I 0. Approximately five (5) months ago. Albert consulted Ray Answers, Attorney, an

on-line "Estate Law Specialist." The consultation consisted of Albert's disclosure of confidential

information, including the names of Ken, Candy, and Pentex. 3 He provided details concerning

' While no doubt the consultation should have remained confidential, in !'act, the posting is available to the public

DFFf:NDANTS' MOTION FOR LEAVE OF Coutn TO FILE THIRD-PARTY PETITION AND Al:ru~ EGO CAUSE No. CV-14-41 g'4{JX FOUNDATION V. GIBBS, ET AL the CSL and the FSA, and asked for an assessment of the situation as he promoted it. See

Exhibit C.

II. As the alleged legal representative for Pentex. Albert filed the current suit on

April 1, 2014. Despite Ken and Candy's repeated requests for full disclosure as to the identity of

the Pentex representative who authorized filing the suit, no such information was forthcoming

from Pentex, immediately or otherwise. During the July 31, 2014, hearing in Tarrant County

(Tarrant County Probate Court No. 2, Cause No. 2005-0000 126-2-D). Scott Smith, Successor

Counsel for Pentex in this Cause, testified that he could not name the designated representative

for Pentex, although he was adamant that Angelli Carassco, Pentex's alleged President, Director,

and Chairman, was not his client, that he had never met her, that, indeed, he had never even

spoken with her. In fact. added Scott. he could not even recall who hired his tirm for the matter,

but confessed that he had discussed the case with Albert on several occasions.

12. On August 5, 2014, Scott forwarded Judge Pat Ferchill a letter m which he

acknowledged that Albert provided a retainer of $5,000 for this current Cause. 4

13. Throughout this entire lawsuit. Scott has adamantly denied that he represents

Albert. However, during the hearing on July 31, 2014, in Tarrant County, Scott testified that he

has spoken to Albert and in fact, it was Albert who called him to represent Pentex. In Scott's

letter to Judge Ferchill on or about August 5, 2014. Scott provided that it was in fact Albert who

paid him a $5.000 retainer. In discovery. Scott asserts attorney/client privilege when asked in

and was found on various dates, including September II, 2014, at the following web address: http://www. j ustanswer .com/estate-law/8d4kl-answered-texas-tru_st-attgrney-three-indi vidua ls.htm I. In the web exchange, Albert confessed to not liking the advice he received, but admitted to "needing to hear it." 4 Pentex Royalty Trust also provided $5,000 toward the retainer. Another of Albert's established organizations, Pentex Royalty Trust is the United States receiver of G WB Trust assets, which in turn were funneled to Pentex. I.e., Pentex Foundation and Pentex Royalty Trust arc essentially the same entity, meaning that they are both Albert's alter egos.

DEFENDANTS' MOTION FOR LEAVE OF Coup TO FILE THIRD-PARTY PETITION AND ALTER EGO CAUSE No. CV -14-41 ~?l4_1fX FOUNDATION V. GIBBS, ETAL.

Request for Admissions No. 96, "admit or deny that Albert, not Danny Unger, initiated this

lawsuit on [Pentex's] behalf." See Exhibit D page 26.

14. During the discovery process, on September 3, 2014. Pentex admitted to Ken and

Candy that, at the time of the alleged damage done to Pentex, Albert "had the authority to carry

on all business in the United States for Pentex Foundation." See Exhibit D, Admission No. 25.

Pentex also stated that Pentex worked with Albert concerning what would evolve into some of

the major points of contention in this lawsuit because doing so was '·mutually advantageous."

And, affirmed Pentex, "Mr. Barcroft definitely made Pentex Foundation aware that he thought

there was a problem in the way proceeds were being paid by GWB Trust ... In brief, Barcroft

was our express liaison with GWB Trust'' (emphasis added). See Exhibit D. Interrogatory No.

2.

15. On September 3, 2014, Albert signed a statement under penalty of perjury (which,

of course, was not notarized), in which he admitted that he is "an agent for Pentex." See Exhibit

E. The document was attached to the Motion to Quash or for Protective Order Relating to

Subpoenas and Deposition Notices, which Scott filed with this Court on September 3, 2014.

II. LAW

16. Rule 38 of Texas Rules of Civil Procedure provides:

At any time after commencement of the action a defending party, as a third-party plaintiff. may cause a citation and petition to be served upon a person not a party to the action who is or may be liable to him or to the plaintiff for all or part of the plaintiff's claim against him. The third-party plaintiff need not obtain leave to make the service if he files the third- party petition not later than thirty (30) days after he serves his original answer. Otherwise, he must obtain leave on the motion upon notice of all parties to the action.

DEFENDANTS' MOTION FOR LEAVE Of' COURT TO FILE THIRD-PARTY PETITION AND ALTER EGO CAUSENO. CV-1 342 PF:NTEX FOUNDATION V. GiBBS, ETAL.

17. Pursuant to Texas Civil Practice and Remedies Code Sec. 33, a court is authorized

to grant such requested leave unless an o~jecting party successfully establishes that the

"defendant did not plead sufficient facts concerning the alleged responsibility of the person to

satisfy the pleading requirement of the Texas Rules of Civil Procedure."

18. The Courts have determined that alter ego is a basis for disregarding the corporate

fiction where a corporation is organized and operated as a mere tool or business conduit of

another individual. Castleberry v. Branscum, 721 S. W .2d 270, 272 (Tex. 1986). lt applies

"where there is such unity between corporation and individual that the separateness of the

corporation has ceased." ld., citing First National Bank, in Ganyon v. Gamble, 134 Tex. 112,

132 S.W.2d 100, 103 (1939). Alter ego "is shown from the total dealings ofthe corporation and

the individual, including the degree to which ... corporate and individual property have been

kept separately, the amount of financial interest, ownership and control the individual maintains

over the corporation, and whether the corporation has been used for personal purposes."

Castleberry v. Branscum, 721 S.W.2d at 272: Hall v. Timmons, 987 S.W.2d248, 250 (Tex.

Appi.-Beaumont 1999, no pet.).

19. Granting the motion for leave to file a third-party petition is within the sound

discretion of a trial court, and leave to file such a petition should be ''liberally granted." In re

Arthur Andersen rrP. 121 S.W.3d 471,483 (Tcx.App.-Houston l14t 11 Dist.]2003, no pet.).

Ill. ARGlJMENTS

20. Albert is undeniably the alter ego of Pentex Foundation, Pentex Royalty Trust,

Renhaw, Inc., and GBU Trust. Albert's actions regarding Pentex's administrative decisions in

DEFENDANTS' MOTION FOR LEAVE t)F COURT TO FILE TIIIRD-PARTY PETITION ANd ALTER EGO 343 PfNTEX FouNOA7'/0N ,._Gums, ct.-fL.;

the matter at hand meet the standards established by the courts for an alter ego.

21. The Purpose of the Organization. A review of the facts emphasizes the fact that

Albert established Pentex specifically for his own advantage. Originally Albert purported that,

upon learning about Pentex's philanthropic efforts, he approached some of the Estate's Heirs

with the proposal that Pentex invest in the Heirs' legal fight for Estate assets. However, the

timeline posited by Albert is not feasible. Albert began discussions with the Heirs as far back as

2005. These discussions were documented in the CSL which Pentex claimed formed the crux of

its Original Complaint, and which. again, was illegally drafted by Albert. However, according to

its formation documents obtained in discovery, Pentcx was not established until 2008. This

means that, way back in 2005. Albert must have concocted a plan in which he would create a

Panamanian foundation once he and the Heirs came close to agreement concerning Estate assets.

In other words, Pentex did not exist prior to Albert's assumption that he would profit greatly

from providing unauthorized legal advice to the Heirs. Clearly Pentex was established to benefit

Albert, and only Albert.

22. Use of the Organization. Specifically, by allowing funds to flow from the Estate

through GWB Trust to Pentex, then on to him, Albert could largely escape the collecting hand of

the I.R.S. Albert's stance regarding the I.R.S. was, and is. infamous. In 2001, he copyrighted an

on-line nonfiction work, which he entitled The Greatest Story Never Told - Until Now, and

which addressed strategies to avoid legal process and other uncomfortable governmental things,

5 While the courts reference "corporations" in terms of alter egos, the function of Pentex within this Cause places it well within the definition of a business structure. On June 20, 2014, in an email from Pentex's Counsel, Pentex is referred to as a corporation.

DEFENDANTS' MOTION FOR LEAVE Of COURT TO FILE THIRD-PARTY PI·TITION AND 'ALTER EGO CAUSE No. CV-

344 flc'Xl'I:X FOl/r\'U·IT/0.\ 1·. Cll/1/iS, IJ.ll..

such as federal taxes. 6 Thus. as Pentex's designer and maker. Albert could enjoy a great number

of monetary rewards without the hassle of governmental oversight. Pentex was a conduit which

allowed Albert to elude the I.R.S. In effect, Pentex is Albert. And vice versa.

23. Control of the Organi~ation. Once established. Albert exercised control over

Pentex. According to Albert's self-avowed position as "'Legal Representative," and according to

Pentex's own Admissions, during the time of the alleged damage to Pcntex, Albert possessed the

authority "to carry on all business in the United States for Pentex."

24. On behalf of Pentex, Albert fully demonstrated this control when asstgnmg

Pcntex's interest 111 GWB Trust to Renhaw. Inc .. and agam when he reassigned Renhaw's

interest back to Pentex.

25. On behalf of Pentex, Albert fully demonstrated this control when wielding the

majority vote of G WB Trust.

26. On behalf of Pcntex, Albert fully demonstrated this control during increasingly

heated discussions with other GWB Trust members over the provisions of GWB Trust.

27. On behalf of Pentex, Albert fully demonstrated this control when he denied that

accurate and complete accountings of GWB Trust were necessary.

28. On behalf of Pentcx. Albert fully demonstrated this control when he demanded a

split ofGWB Trust assets.

29. On behalf of Pentex, Albert fully demonstrated this control when he ordered

Beverly Miller to assign all of Pentex 's interest (and a great deal of interest not belonging to

7

Pentex) in GWB Trust to CJBU Trust.

6 As recently as September 14, 2014, Albert's treatise on the evils of governmental influences could be found at:

h~_p_;i[~WW:!!..l!!!IJ.illly!2f_@en t&om"0_r._~~tes_tl:Q~Q§.tory%~QN ~y~o2 QToJQ-J)_Nilk'Y~Q N0 W_,nsjf.

DEFENDANTS' MOTION FOR LEA VI- OF ColiRT TO F11.1: THIRD-PARTY PI'TITION AND AI TFJ~ E<IO Cl\ljSI· No. CV-14-41 j~5':X FOl.\1l.lllOS I. GIHIIS, J-J.-11 ..

30. On behalf of Pcntex. Albert fully demonstrated this control when he paid Scott a

retainer fee.

31. On behalf of Pentex, Albert fully demonstrated this control when he entered into

discussions with Scott about this Cause, circumstances which Scott admits, but Smith continues

to state that he does not represent Albert.

32. As the Court was alerted to their Original Answer's Counter-claim, and in their

First Supplement to the Original Answer, Albert's presence in this Cause as a Third-Party is an

urgent matter to Ken and Candy. whose interests will not be served otherwise. Albert has been

the defining presence in Pentex since its inception. Albert has represented himself as the Legal

Representative for Pentex since he founded it. Albert has made the decisions for Pentex

regarding all its interactions with GWB Trust. Albert has assigned Pentex's interest in and out of

GWB Trust. Albert has made consistently demands on behalf of Pentex to GWB Trust. Albert

has voted always Pentex's majority vote in GWB Trust. Albert provided information to Pentex's

Counsel concerning this Cause.

33. Albert meets the court-established standards of the alter ego for Pentex. As the

alter ego for Pentcx, Albert should be named as a party to this Cause. This Court is authorized to

grant Ken and Candy leave to file Third-Party Action.

IV. PRAYER FOR RELIEF.

Candy and Ken therefore respectfully pray that this Court:

7 Per Albert's apparently successful habit of eluding the I.R.S. through formal business structures, in the Fall 2013, when the I.R.S. slapped a federal tax lien on Pentex Royalty Trust, Albert turned around and assigned Pentex's interest in GWB Trust to GBU Trust.

DEFENDANTS' MOTION FOR LEA VI: OF COURT ro FILE TIIIIW-P/\RTY PLTITION ,\ND Al:lrJ~ E<iO C/\liSI·: No. CV-14-41 ,1'4tjLX FOUNIJAlJUX r. 0//IHS, /Jill ..

34. Approve this Motion for Leave of Court to File Third-Party Petition and Alter

Ego;

35. Require that Scott Smith receive and accept service on Albert, as Scott, is in fact,

Albert's attorney; or,

36. In the alternative, set the Motion to be heard during the hearing for the Motion to

Show Authority, scheduled in this matter for September 30, 20 14; and

37. Enter all other Orders and further relief, legal and equitable, that the Court deems

appropriate in this matter.

Respectfully submitted,

LAW OFFICES OF CHRISTY LEE, P.C.

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

ATTORNEY fOR KENNETH GIBBS AND CANDACE WALTON

The above and foregoing Defendants' Motion for Leave of Court to File Third-Party Petition and Alter Ego is approved. The Motion shall be heard by the Court on the ____ _ day of _________ , 2014, at _ _ _ _ _ _ o'clock, .m.

Presiding Judge or Clerk of the Court

DHTNDANTS' MOTION F<m LLAVI: 01' Cot!,Rl TO FILl: TIIIIW-PARTY PITITION 1\ND AIITJ{ EtiU CAllS I: No. CV -14-41 3~'fX FOUNDAr!ON 1'. CJI/JIJS, cTAL. -l

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the Defendants' Motion for Leave of Court to File Third- Party Petition and Alter Ego was delivered, pursuant to Texas Rules of Civil Procedure, to the following parties on this 15th date of September, 2014:

Via:

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

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

Christy L. Lee

DEFENDANTS' MOTION FOR LEAVE OF COURT TO FILE THIRD-PARTY PETITION AND ALTEik EGO CAUSE NO. CV -14-41665 gr4'ff\' FOUNDATION 1'. GIBBS, !JAL -11-

2013-12:02 12;33 CANDYWAKTON 8172704383» 8006802804 p 1/4

PENTEX FOUNDATION A Private Foundation of PonamD, C.A.

November 25, 2013

Kenneth Vern Gibbs [Ken] Candace Gibbs Walton [Candy] Howard Kirk Gibbs [Howard)

RE: Formal Notice of Revocation of GWB Family and Friends Trust and split of assets pursuant to original contract between the parties

Ken, Candy and Howard:

This is my formal notice on behalf of myself, and as Agent for Pentex Royalty Trust and its sole beneficiary PENTEX FOUNDATION, and RENHAW, INC., a Panama corporation and wholly owned subsidiary of PENTEX FOUNDATION, that 1/we are utilizing Item #6 on page 4 of the "Contract for Sale of Land, Mineral Rights and Royalties, and all other Assets or Monies Received from the Estate of Bert Hughes Gibbs, Kathryn G. Gibbs, and/or the Mary L. Houseworth Trust(s) or 'The Kathryn Houseworth Gibbs Irrevocable Trust"', herein also referred to as "Contract for Sale of Land11 , to split the assets of the GWB Family ar.c Friends Trust, herein also "GWB 11 under the terms provided in said

J

Contract for Sale of Land.

The relationship between us has deteriorated to the point that I no longer wish to be associated with you. I have accused you of not honoring the agreement between us; and you, or at least some of you, have accused me of plotting to steal your portion of the "Estate of Ben Hughes Gibbs", herein also "Estate", at the point of any of your deaths. I was even told by Candy that I was not the honorable man I once was.

Exhibit .

349 Page____l_

CANDY WAKTON 8172704383 » 8006802804 P2/4 2013-12:02 12:33

You have not confined those remarks to conversations between us, because Jay Henderson asked me if I intended to steal your shares.

You hired an attorney who made ridiculous demands of me, told me how stupid I was, tried to [and succeeded in your mind] create a problem where none existed, explained to me that no one but a BAR attorney could read or understand the law/code, and called me a liar and thief. Where was she when all you had were judgments against you7 She even admitted to me that she would never have taken your case back then.

In addition, I do believe that at least two of you have broken our deal and your word to me. When I asked that GWB move to enforce the provision in the Gibbs Family Settlement Agreement, herein also "FSA" 1 to sell the land, Candy had the nerve to tell me that I had been paid very well for what I did, and that she wanted to keep the land for her daughter. Ken continues to use the 11 home place" as his own personal pruperty, and refuses to pursue selling it in a viable manner.

The fact is that neither I nor my assigns have been paid what was agreed to and promised. Bert died 9 years ago, the FSA is now 5 years old, and we're no closer to closing the Estate than we were 5 years age. Ken has given an exclusive listing on well over 200 pieces of property tc a car salesman~ and that "agent" has not produced a new contract for sale of any land in over a year with some 230 pieces of pi·operty in wha;: everybody calls a "hot" area at his, and only his, disposal. Further, it is my belief that virtually all the sales this "agent" has ever "made" have been handed to him by the Estate when someone called the Estate requesting to buy certain property. Essentially, he is a high~priced order taker. These situations are not acceptable.

I intend to move forward aggressively on behalf of PENTEX FOUNDATION to force compliance with the FSA. As a member of GWB_

350 Page_)'---

2013-12~02 12:33 CANDYWAKTON 8172704383>> 8006802804 P3/4

PENTEX FOUNDATION has restraints on what it can do; and, every timE: there is a vote in GWB that doesn't go your way, you yell foul. Further, there is a conflict of interest because an action must be brought agair:s·: Ken to force compliance with the FSA or to remove Ken as Executor, and Ken is a voting member and beneficiary of GWB. Therefore, any action by GWB would involve using Ken's money to sue him. I cannot imagine how that would play out, or how the court would handle that scenario; therefore, we never moved forward. That is the main reaso:-: why PENTEX FOUNDATION has not been able to proceed with enforcement actions earlier.

All this adds up to the fact that PENTEX FOUNDATION simply doe5 not wish to remain a party in GWB. Under the terms of the Contract for Sale of Land and the laws of the State of Texas, it does not have tc.

Therefore, this is my formal notice to each of you that, as agent for PENTEX FOUNDATION, I am revoking PENTEX FOUNDATION's entl~2 contribution to GWB, and demanding a split of its assets pursuant to the Contract for Sale of Land at page 4, Item #6, to wit:

"It is hereby agreed that there shall be a business organization, the exact type to be agreed upon at a later date, created by the parties hereto; and, that all revenue of any kind received from any of the property and/or assets covered herein shall be deposited into a bank account in that entity's name, and that ::=.: expenses necessary to the continuation of revenue being paid t~ the parties hereto (i.e. property taxes on the royalties or property covered herein, and any necessary expenses such as well upkeep, etc.) shall be deducted and paid as required bef~ve the 70/30 division agreed to in this contract. Barcroft shaU have: a 50% vote in the operation of said business organization; and~ the only fundion of said business organization shall be to facilitate the agreement in this contract. Any monies paid out c~~ said business organization, other than the agreed upon split

7

351 Page----L.)_ 2013-12:03 03:06 CANDY WAKTON 8172704383 » 8006802804

between the parties, shall be agreed upon by all parties hereto. The division shall be divided on a basis of 30% to Barcroft, 23.34% to Kenneth Vern Gibbs, 23.33% to Candace Walton Gibbs, and 23.33% to Howard Kirk Gibbs, at each instance of dispel"$al to the parties. Any party may demand a split of the assets of said business organization at any time."

The business organization described at page 41 item #6, and showr~ [;, its entirety directly herein above, is GWB, which was created to Llfi:: this provision of the Contract for Sale of Land; therefore, the optior. tc demand a split of the assets applies to GWB and is enforceable.

I regret that your actions have necessitated this action. I h2.c hoped afways to remain friends. It doesn't appear that was in the cards. After this, I will have no way to "steal" anything that beior:gs r: you, or visit any other false threat your attorney has created in vo-.... ( mind on you; but, I intend to fully coltect what belongs to PENTEX FOUNDATION.

PENTEX FOUNDATION is assigning its share of the Estate p~oceeo~ from the Contract for Sale of Land to the GBU Friends and Associates Trust, 410 Anderson County Road 154, Palestine, Texas 75801. PEl\ Tt). FOUNDATION will receive regular mail, but not certified or registered mail or service, at 210 West Oak Street #151, Palestine, Texas 75801. Service and mail that must be signed for must be made through h: home office; PENTEX FOUNDATION, Panama Gardens" Unit 2, Hade Udice, Capiral Republic· of Panama; or, through me at Rancho L:;s Bris.2~, San Marcos, livingston, lzabal, Guatemala, Central America.

AI nn Barcroft Agent for PENTEX FOUNDATION

352 Page

~ ..,.

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Copies of this notice have been sent by Certified Mail, Return Re.::e!;H Requested~ to:

..,. = Howard Kirk Gi~-bs 00 ~ Kenneth Vern Gibbs Candace Gibbs Walton ...= 00

Cl 4212 Wheeler Street 500 Logan Dr. 4005 Vernon --.;V?='/ 00

Ft. Worth, TX 76117 Azle, TX 76020 Keller, TX 76243 " " "" 00 ..,. "" .... Cl

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PENTEX FOUNDATION A Private Foundation of Panama, C.A.

December 18, 2013

To: Kenneth Vern Gibbs, Executor for the Estate of Bert Hughes Gibbs 4212 Wheeler, Ft. Worth, TX 76117

To: Rickey Brantley, Attorney for the Estate of Bert Hughes Gibbs 855 Texas St, Fort Worth, TX 76102

To: Scott Pelley, Attorney for the Estate of Bert Hughes Gibbs 707 West Washington, Sherman, TX 75092-5639

To: Jimmy Walker, Attorney, Permanent Guardian of Kathryn Gibbs 815 Walker, Suite 240, Houston, TX 77002-5762

Dear Mr. Gibbs, Mr. Brantley, Mr. Pelley and Mr. Walker:

This notice is to inform the Estates of Bert and Kathryn Gibbs rEstates"} that the origlnal3096 assignment titled 11Contract for Sale of Land, Mineral 1tfahts and Royalties, and all other Assets or Monies Received from the Estate of Bert Hushes Gibbs, Kathryn G. Gibbs, and/or the Mary L Houseworth Trust(s) or 1'be Kathryn Houseworth Gibbs Irrevocable Trust'~#["CSL.,] to AI Barcroft has been transferred to GBU Friends and Associates Trust (,GBU"] from GWB Family and Friends Trust [11GWB11] effective November 26, 2013; and, that all future distributions relating to this 3096 assignment by Kenneth Vern Gibbs, candace Walton Gibbs and Howard Kirk Gibbs [..,Gibbs Children.,] to AI Barcroft should be remitted directly to GBU, 410 Anderson County Rd 154, Palestine, Texas 75801.

Item number 6 of the CSL provided for the creation of a business organization that would receive and distribute the 70% portion of the Estates' distributions owned by Kenneth Vern Gibbs, Candace Gibbs Walton and Howard Kirk Gibbs (collectively "Gibbs Children"] along with the 3096 assignment to AI Barcroft; and GWB, a revocable trust, was created on or about November 7, 2008, in accordance with that requirement. The CSL

Notice of Transfer to GBU Page 1 of3

354 Page

further provided in the same paragraph thot ony potty may demand o split of the assets of st1ld business organlzotlon at any time. PENTEX FOUNDATION, a settlor of GWB and current assignee of the 30% assignment from AI Barcroft, has revoked Its contribution to GWB and assigned its share of the assets residing in GWB to GBU. PENTEX FOUNDATIION hereby affirms that its share due from the Estates relating to the 30% assignment are now transferred to the GBU, and all future distributions relating to said 30% assignment by either Estate should be made payable to GBU.

In accordance with the Gibbs Family Settlement Agreement ["FSA"], Kip Gibbs was to receive 25% of the Estates of Bert and Kathryn Gibbs with the remaining 75% going to the Gibbs Children. In accordance with the FSA and the CSL, 22.5% of the distributions by the Estates is owned by and related to this original 3096 assignment. However, 2.46% of the original 22.5% of the gross E5tates is being paid directly to John Skotnik, leaving the assignee wfth 20.0496 of the gross distributions of the Estates.

THEREFORE, FROM THIS DATE FORWARD, Notice and Demand is hereby made upon the Estates of Bert and Kathryn Gibbs, that from the date of this notice forward, that portion of all distributions made by the Estates of Bert and/or Kathryn Gibbs related to the original 3D% assignment made by the Gibbs Children to AI Barcroft, and currently being paid to GWB Family and Friends Trust, be distributed and made payable to; and, be sent directly to: GBU Friends and Associates Trust 410 Anderson County Road 154 Palestine, Texas 75801 The tax number for GBU Friends and Assadates Trust is 38--7103561.

If either Estate disagrees with the calculation referred to herein, or needs any further verification of any documents related to this transfer, please notify me Immediately by e-mail to albertbarcroft@gmail.com, specifically identifying any mistake in the calculation and/or required verification; or, as to any reason why future distributions will not be made directly go GBU Friends and Associates Trust as requested.

Notice of Transfer to GBU Page2of3

Exhibit

355 Page J

On behalf of At Barcroft, Pentex Royal Trust, PENTEX FOUNDATION, and/or RENHAW, INC., conjunctively and/or individually, I hereby stipulate that a photocopy of a scanned e-mail or fax of this document, and any attachments, may be used as originals for all legal purposes.

I hereby certify and affirm with my slanature below under penalty of perJury under the laws of the United States of America that lam the lepl repreyntatlve for Pentex Royalty Trust, PENTEX FOUNDATION, and RENHAW, INC.: and, as such, I have the authority to make alllepl decisions on their behalf. [28 USC§ 1746(1))

Further, Beverly Miller, Trustee of the GWB Family and Friends Trust, is in the possession of the original authorization for me to represent those entities; and, she will provide copies of same if necessary.

Dated and Signed this 18th day of December, 2013.

~~ Albert Lynn Barcroft In my personal capacity, and as legal representative for PENTEX FOUNDATION, Pentex Royalty Trust, and RENHAWI INC.

a:: Kenneth Vern Gibbs, Rickey J. Brantley, and Scott Pelley by United .. States Postal Service, Certified Mail, Return Receipt Requested to the addresses shown In the heading hereto.

cc: By e-mail to:

Rickey Brantley at rickey@rickeybrantley.com Scott Pelley at spelley@npwlawfirm.com

Notice of Transfer to GBU Page 3 of3

·-:, r;)\: ..•..

Exhibit /~;>/ A 356 Page 3 of (~~~?(

Estate Law To be answered by a Texas Trust attorney: Three individuals Resolved Question: To be answered by a Texas Trust attorney:

Three individuals (A, B, & C) sold to one other person (D) exactly 30% of their inheritance before the fact of the inheritance (for D's assistance in dealing with all problems and concerns of securing the inheritance).

B. The people did this by a contract for sale ("Contract") executed and filed in the public record.

C. Under the terms of the contract, a business organization would be established so that all money to be paid from the inheritance pursuant to the contract would be deposited into the business organization.

D. The percentages due to each would be as follows: D= 30%, A=23.34%, B=23.33% and C=23.33%.

E. The language of the contract was as follows:

1. "It is hereby agreed that there shall be a business organization, the exact type to be agreed upon at a later date, created by the parties hereto; and, that all revenue of any kind received from any of the property and/or assets covered herein shall be deposited into a bank account in that entity's name, and that all expenses necessary to the continuation of revenue being paid to the parties hereto (i.e. property taxes on the royalties or property covered herein, and any necessary expenses such as well upkeep, etc.) shall be deducted and paid as required before the 70/30 division agreed to in this contl-act... ; and, the only function of said business organization shall be to facilitate the agreement in this contract. Any monies paid out of said business organization shall be agreed upon by all parties hereto, and shall be divided on a 70/30 basis at each instance of dispersal to the parties. Any party may demand a split of the assets of said business organization at any time."

F. The business organization that was created in compliance with the Contract was specifically a revocable trust. [The trust document specifically states: "This trust shall be revocable."]

G. Three of the parties (A, B, & C) to the contract became named settlers in the trust and contributed their entire share; and, the fourth party (D) to the Contract contributed his entire share as well, but was not a named settlor in the trust.

H. Under the definitions in the trust document, "settlor" is defined as:

1. "Settlor" means a person [or persons] Who creates a trust or contributes property to 357 Page 2. If more than one person contributes property to a trustee of a trust, each person is a settlor of the portion 'of the property in the trust attributable to that person's contribution to the trust."

I. The proceeds from the contract were the only contributions to the trust.

J. The beneficial distribution within the trust was different than the settlor's contributions for several reasons; but the settlors or their interests never changed.

K. The person D decided to revoke his contribution to the trust.

Questions based on these facts

1. If a person (D) who was not specifically named as a settlor in the original trust document contributes property to the trust, in accordance with the above trust definition, does that person's contribution cause him to become a settlor of the trust with a revocable interest for his entire share of the contribution?

2. Can any settlor revoke all of his contribution, even if his defined beneficiary interest percentage in the trust was less than the percentage contribution he made?

a. For example, a settlor contributes 30% of the total assets to a trust, but he receives only 25% of the beneficial distributions from the trust.

b. If he revokes his contribution, can he revoke the full 30% he contributed?

3. Can the underlying contract that caused the creation of the trust be enforced after the trust is created and in force and action?

Expert: RayAnswers Hi and welcome to JA. I am Ray and will be the expert helping you today.

Let's go through your questions here.

1. If a person (D) who was not specifically named as a settlor in the original trust document contributes property to the trust, in accordance with the above trust definition, does that person's contribution cause him to become a settlor of the trust with a revocable interest for his entire share of the contribution?

Answer: He would not be a settlor unless he either set up the trust or their was an amendment done adding him as a settlor.If the other parties agree you can amend the revocable trust here and make him a settlor to the trust.

2. Can any settlor revoke all of his contribution, even if his defined beneficiary interest percentage in the trust was less than the percentage contribution he made?

a. For example, a settlor contributes 30% of the total assets to a trust, but he receives only 25% of the beneficial distributions from the trust. Exhibit 358 Page ___ -;).__

Here the terms of the trust control as far as the trust and again a trsut amendment could be done to allow for this.

Sample trust amendment.

~1ttp: //www .lgggroup.com/html/pla n-and- prosper-

pdf/REVOCABLE%20LIVING%20TRUST%20Amendment Form. Qdf

b. If he revokes his contribution, can he revoke the full 30% he contributed?

If the trust does not allow for this then no under the trust. He could sue under breach of contract here for the amount of contribution if the contract allows for that. You would have four years from the date of breach to bring suit.

http: /lcodes.lp. findlaw .com/txstatutes/BC/ 1/2/G/2. 725

3. Can the underlying contract that caused the creation of the trust be enforced after the trust is created and in force and action?

Yes the contract can be enforced as breach of contract suit.

I appreciate the chance to help you today.Piease let me know if you have more follow up.Thanks again.

RayAnswers, Attorney Category: Estate Law Satisfied Customers: 29595 Experience: Texas lawyer for 29 years in Estate law

RayAnswers and 7 other Estate Law Specialists are ready to help you

Exhibit 359 Page 3

Expert: RayAnswers AI, here is the law that allows you to amend the trust.

SUBCHAPTER C. REVOCATION, MODIFICATION, AND TERMINATION OF TRUSTS

Sec. 112.051. REVOCATION, MODIFICATION, OR AMENDMENT BY SETTLOR. (a} A settlor may revoke the trust unless it is irrevocable by the express terms of the instrument creating it or of an instrument modifying it.

(b) The settlor may modify or amend a trust that is revocable, but the settlor may not enlarge the duties of the trustee without the trustee's express consent.

(c) If the trust was created by a written instrument, a revocation, modification, or amendment of the trust must be in writing.

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Expert: RayAnswers AI here is a very detailed article about amending trusts in Texas under the law.

http://www .galliganmanning .com/documents/Modification-and-Termination-of-Trusts-and-Trustee- Resignations. pdf

An amendment would allow the settlers to add a third one and to incorporate the contract details into the trust where needed.

Thanks again.

f L ;;..sk Your Own Estate law Qw.::stion . ~

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Customer: (D) is a foundation. It was added to the trust as follows:

3. I Beneficiaries: The beneticiaries. and percentage ofbeneticial interests. are as follows:

Kenneth Vern Gibbs: 25.011614% of the trust: Exhibit 360 Page---'"{'----

361

Candace Gibbs Walton: 25.011613% ofthe trust:

Howard Kirk Gibbs: 25.011613% of the !lust:

Pentex Royalty Trust: 24.96516 % of the trust.

3.2 Voting Shares: Actions and decisions concerning the tntst shall be governed by vote of the beneficiaries hereto. Sixteen (16) votes will represent a majority of the votes on any issue unless specifically set herein at a different vote requirement. Each beneficiary shall have following votes in any matter of the trust for which a vote is called:

Kenneth Vern Gibbs: 5 votes:

Candace Gibbs Walton: 5 votes;

lloward Kirk Gibbs: 5 votes;

Pentex Foundation: IS votes.

Pentex Foundation actually has 50% vote in matters conceming the tJust. Does that make a difference.

Exhibit

Expert: RayAnswers

Unless the trust allows for the person D to retrieve his contribution or the beneficiaries all agree he woudl have to file suit against the trust to seek his contribution and add a breach of contract claim as weii.He might be able to prevail on either one and the court might revoke the trust divide out the assets here and any otehr orders they feel neecssary to resolve the exiting trust.

Unless ther is voluntary agreement here of all the beneficiaries such a suit would be necessary and the court here would decide whether he gets the full contribution back.Ther eis some uniqueness or case by case.

For example if there was real estae contributed to the trust and it went down and had less value the court would have to use its equitable powers for a fiar resolution.Base on what you present there is no language that allows a party to get out here short of a suit and the court revoking the trust or awarding him his contribution here.

This section really doesn't address any refund of contribution. Unless the trsut does the options are amend the trust again, resolve it with the beneficiaeies, or a civil suit to seek to have the court revoke it or resolve it.

Thanks for the follow up. ,.--------- ·-------- ' '----·-------------

Customer: One last follow up in this case.

There is a dispute in this case as to the trust document. The document filed in the court case is a copy that has many flaws, including no date and some of the pages not being number in sequence. To perform on the trust if there is a dispute, would it be necessary for the moving party to actually present the original trust document?

Expert: RayAnswers

Yes either the original here or convince the copy is a trust correct and completed one. from what you present that might be hard to do here.

362 Page fr

The following are the legal requirements for a valid trust in Texas:

The Settlor must have a present intent to create a trust. According to the Texas statutes, a trust is created if the Settlor manifests an intention to create a trust. No specific words are required."

The Settlor must have capacity to convey assets to the trust. The Settlor has capacity if: he or she is over the age of 18 or has been lawfully married or a member of the armed forces, and

is of sound mind, which means he knows the nature and extent of his property, the persons who are the natural objects of his bounty, the disposition that he is making, and how these elements relate to form an orderly plan for the disposition of his property.

The trust must comply with the Statute of Frauds. A trust may be created orally through a declaration of trust; however, if it involves the transfer of real property, it must be in writing.

The trust must have a legal purpose. The terms of a trust may not require the trustee to commit a criminal or tortious act or an act that is contrary to public policy.

The Settlor must identify the property covered by the trust and place it in the trust for the benefit of the beneficiary. The Texas statutes specify that a trust cannot be created unless there is trust property.

The trust must have a Trustee who holds legal title of property for the benefit of the trust's Beneficiaries. If there is no Trustee named, or if the Trustee that is named does not want to serve or cannot serve for any reason, the court can appoint a Trustee for the trust.

The trust must have ascertainable Beneficiaries. If the Settlor does not name the Beneficiaries with sufficient certainty, the trust will fail.

The trust my not violate the Rule Against Perpetuities, which says that an interest is not good unless it must vest, if at all, not later than 21 years after some life in being at the time of the creation of the interest, plus a period of gestation.

AI thanks for letting me be of service.! wish you the best with all of this.

~~- -------------·-·--· --------· .. ·-·:-~-----------~ Ask Your Own Estate law Qu(~5tJoP ll ________________________________________ _: ___________ ,............._,,)I

Customer:

Exhibit Thankjmor good answers. Most not what I wanted to hear, but what I needed.

Page 1

You have answered my questions in the past, and you give much more complete answers than the others I have had. Is there any way to request you? I have more question about the Contract in which the 30% was sold to me, but those questions are unrelated to the trust questions and would require me to pay again.

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Exhibit

365 Page _ __,_q_

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

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

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

GENERAL OBJECTION

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

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

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

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

RESPOl\I"SE: Pentex Foundation has no documentation in its possession responsive to this request, except those marked Plaintiff/Intervenor 000135-

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

Exhibit 366 Page____."--_

175.

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

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

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

RESPONSE: Objection. This request is overly broad and outside the scope of discovery to the extent it requests "letters, emails, bank records, correspondence, and accountings related to Albert's involvement in your formation." Subject to this objection, please see the documents attached hereto as Plaintiff/Interpleader 00001-00033.

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

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

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

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

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

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

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

PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GffiBS Page2

367 Page_..;...~-

with Danny Unger concerning GBU Trust.

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

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

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

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

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

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

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

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

RESPONSE: Pentex Foundation objects to any such communications initiated after the anticipation oflitigation. Subject to these objections, Pentex Foundation has no documentation in its possession responsive to this request.

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

RESPONSE: Pentex Foundation has no documentation in its possession

PENTEXFOUNDATION'S RESPONSE TO DISCOVERY FRCM KENNETH GIBBS Pagc3

368 Page J

responsive to this request.

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

RESPONSE: Please see Plaintiff/Intervenor 000123, 000034.

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

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

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

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

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

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

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

PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIDBS Page4

Exhibit

369 Page 1

370

with Albert concerning Pentex Trust.

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

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

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

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

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

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

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

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

RESPONSE: Pentex Foundation objects to any such communications protected pursuant to the "joint defense doctrine" recognized in TEX. R. EVID. 503(b)(1) and such cases as Ryals v. Canales, 767 S.W.2d 226,228 (Tex. App.-Dallas 1989, orig. proceeding). Subject to this objection, Pentex Foundation has no documentation in its possession responsive to this request other than as may be produced herewith.

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

PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page 5 base the claims against Candy and Ken in your Original Petition.

RESPONSE: Pentex Foundation objects to this request as overly broad and fails to direct Plaintiffto any class or type of documents. See, Loftin v. Martin, 766 S.W.2d 145 (1989). Subject to this objection, please see the documents attached to the Motion for Partial Summary Judgment submitted in this case.

REQUEST FOR PRODUCTION NO. 23: Produce any communication dating back to January 1, 20 11, including letters, tape recordings, or emails, that you have had with Beverly Miller concerning Pentex Trust.

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

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

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

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

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

PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page6

Exhibit ]) i!),:;:~'· fi 371 Page /(, of -2 :?(' ., '\~':,::~~ir

372

be produced herewith.

REQUEST FOR PRODUCTION NO. 26: Produce all documents and communications dating back to September 1, 2008, including letters, tape recordings, or emails, that you have had with Rickey Brantley concerning the Estate's distributions to Heirs and the calculations of the Heirs' attorneys' fees.

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

REQUEST FOR PRODUCTION NO. 27: Produce all documents and communications dating back to September 1, 2008, including letters, tape recordings, or emails, that you have had with Scott Pelley concerning the Estate's distributions to Heirs and the calculations of the Heirs' attorneys' fees.

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

REQUEST FOR PRODUCTION NO. 28: Produce any communication dating back to September 1, 2008, including letters, tape recordings, or emails, that you have had with any representative of JW Operating Company concerning you yourself, Albert, GWB Trust, Pentex Trust, and GBU Trust.

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

REQUEST FOR PRODUCTION NO. 29: Produce any communication dating back to September 1, 2008, including letters, tape recordings, or emails, that you have had with any representative of Trio Consulting and Management, LLC, concerning you yourself, Albert, GWB Trust, Pentex Trust, and GBU Trust.

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

REQUEST FOR PRODUCTION NO. 30: Produce any communication dating back to September 1, 2008, including letters, tape recordings, or emails, that you have had with any representative of Devon Energy concerning you yourself, Albert, GWB Trust, Pentex Trust, and GBU Trust.

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

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

PENTEX FOUNDATION'S RESPONSE TO Dl;SCOVERY FROM KENNETH GffiBS Page 7

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

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

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

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

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

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

373 Page

374

Pentex Foundation only as specified in the general objections:

Pentex Foundation purchased an interest in the Contract for Sale that Albert Barcroft originally owned. It was mutually advantageous to continue to work with Albert to bring the terms of the contract to conclusion, and he served and serves on our behalf in the matter. To the knowledge ofPentex Foundation, Albert had no responsibilities to pay any attorneys other than John Skotnik in the matter, and such was not shown in any documentation presented to Pentex Foundation. When Pentex was forced to hire new counsel in the case, it did not have sufficient funds in the United States to pay the full retainer. Mr. Barcroft did. Pentex Foundation gave Mr. Barcroft money here, and he sent that money to Scott Smith in the United States. Mr. Barcroft definitely made Pentex Foundation aware that he thought there was a problem in the way proceeds were being paid by GWB Trust, if that qualifies as instigation. In brief, Barcroft was our express liaison with GWB trust, whatever it is.

INTERROGATORY NO.3: Explain the reasons you came to believe that contingency fee attorneys were deducting their fees from the total due you, Ken, Candy, and Howard Kirk, then issuing one check to GWB Trust, including the rationale for believing that in excess of$ 1 million in attorney fees were due from Ken, Candy, and Howard Kirk; when and how you arrived at these alleged facts; and the reason that Beverly Miller was instructed to assign 57.19% interest in GWB Trust to GBU Trust, when you were entitled to a far smaller percentage.

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

The percentage due Pentex Foundation under the Contract for Sale. Barcroft's share was 30% of everything Ken, Candy and Howard received. Ken, Candy and Howard each received 25%, for a total of75%, of the estates. Of the 75%, Pentex Foundation owned 30%, equaling 22.5% of everything distributed by the estate (75% X 30%=22.5%). The estate distributed mineral interests to GWB Trust equaling 35.04% of the total minerals owned by the estate. It also distributed 2.46% directly to John Skotnik in payment for his services as attorney (an amount due solely by Barcroft). Of the 35.04% distributed to GWB Trust, Pentex Foundation owned 20.04% (22.5% minus the 2.46% already distributed to Skotnik). 20.04% is 57.19% of35.04%; thus, Pentex Foundation owned 57.19% of the

PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIDBS Page9

375

minerals transferred to GWB Trust by the estate.

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

ANSWER: Pentex Foundation objects to any such communications initiated after the anticipation oflitigation and/or protected pursuant to the "joint defense doctrine" recognized in TEX. R. EVID. 503(b)(1) and such cases as Ryals v. Canales, 767 S.W.2d 226, 228 (Tex. App.-Dallas 1989, orig. proceeding). Pentex Foundation objects to this interrogatory as outside the scope of permissible discovery and overly broad. Subject to these objection, Pentex Foundation answers as follows, and under a defmtion of"you" and "your" to refer to Pentex Foundation only as specified in the general objections:

Pentex Foundation has had no such communications with Howard Kirk.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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percentages specified in the GWB Trust document.

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

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

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

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

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

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

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

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

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

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

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

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

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

REQUEST FORAD1v1ISSION NO. 15: Admit or Deny that you invested $250,000 for expenses related to the settlement of the Estate.

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

REQUEST FOR AD1v1ISSION NO. 16: Admit or Deny that you were established after Albert entered into discussions with Candy, Howard Kirk, and concerning the settlement of the Estate.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

RESPONSE: Pentex Foundation objects to this request as multifarious and

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speculative (when speaking about future events which may or may not occur). Pentex Foundation objects to this request as outside the scope of legitimate discovery.

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

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

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

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

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

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

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

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

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

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

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

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380 Page transferred 57.19% interest from GWB Trust to GBU Trust.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

RESPONSE: Denied.

REQUEST FOR ADMISSION NO. 40: Ad1nit or Deny that Candy does not have the authority to control the Estate's distributions to the Heirs.

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

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

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

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

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was inappropriate, as Ken individually does not have the authority to control the Estate's distributions to the Heirs.

RESPONSE: Denied.

REQUEST FOR ADMISSION N0.43: Admit or Deny that Renhaw, Inc., received your interest in GWB Trust, then transferred it back to you.

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

REQUESTFORADMISSIONN0.44: Admit or Deny that you were effectively rendered a "nonentity" with regard to GWB Trust, because of the transfers as follows: Albert Barcroft> Renhaw > GWB Trust.

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

REQUEST FOR AD:MISSION NO. 45. Admit or Deny that Howard Kirk and you worked together to remove assets from GWB Trust which did not belong to you in order to benefit unjustly from those assets.

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

REQUEST FOR ADMISSION NO. 46: Admit or Deny that prior to around November 2013, you did not question the distributions from GWB Trust.

RESPONS~: If "you" refers solely to Pentex Foundation as discussed in the general objections, admit.

REQUEST FOR ADMISSION NO. 47: Admit or Deny that you issued instructions via Albert to Beverly Miller concerning the administration of GWB Trust.

RESPONSE: Ojbection. This request is ambiguous. Subject to this objection: Denied.

REQUEST FOR ADMISSION NO. 48: Admit or Deny that you occasionally hired and paid Danny Unger to perform minor accounting work, as well as research.

RESPONSE: Admit that he did some accounting for Pentex Foundation.

REQUEST FOR ADMISSION N0.49: Admit or Deny that you were aware that you were entitled to less than a quarter of the proceeds in GWB Trust, after

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

RESPONSE: Denied.

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

RESPONSE: Denied.

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

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

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

RESPONSE: Denied.

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

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

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

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

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

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

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

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

RESPONSE: Denied.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

RESPONSE: Admit that the beneficiaries were informed.

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

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

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

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

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

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

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

REQUEST FOR ADMISSION NO. 69: Admit or Deny that Albert, as your Legal Representative, exerted undue influence over Bever1y Miller.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

RESPONSE: Denied.

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

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

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

RESPONSE: Denied.

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

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

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

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

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

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

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

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

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

RESPONSE: Admit.

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

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

REQUEST FOR ADMISSION NO. 85: Admit or Deny that Albert drafted the GWB Trust agreement.

RESPONSE: Objection. This request assumes facts in dispute, to wit: whether there even is a GWB Trust agreement. Subject to this objection, Pentex Foundation has made reasonable inquiry and the information known or easily obtainable is insufficient to enable it to admit or deny this request.

REQUEST FOR ADMISSION NO. 86: Admit or Deny that the Estate is being mismanaged.

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

REQUEST FOR ADMISSION NO. 87: Admit or Deny that the Estate's calculations concerning the percentages of the Heirs' interest in the Estate impact GWB Trust.

RESPONSE: Objection. This request is confusing and vague, and seems to suggest a pure question of law. Subject to this objection, Pentex Foundation has made reasonable inquiry and the information known or easily obtainable is insufficient to enable 1t to admit or deny this request.

REQUEST FOR ADMISSION NO. 88: Admit or Deny that you have a true and correct copy of the CSL.

RESPONSE: Admit.

REQUEST FOR ADMISSION NO. 89: Admit or Deny that you have a true and correct copy of the FSA.

RESPONSE: Admit we believe we do.

REQUEST FOR ADMISSION NO. 90: Admit or Deny that, according to the FSA, Albert is responsible for paying his own attorneys' fees.

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RESPONSE: Objection this calls for a pure legal conclusion. Subject to this objection, admit as to our understanding of that to be the case.

REQUEST FOR ADMISSION NO. 91: Admit or Deny that Candy and Ken are not responsible for any tortious interference between GWB Trust and yourself, as neither Candy nor Ken ever interfered with the appropriate distributions to you of approximately one-quarter (1/4) interest in GWB Trust.

RESPONSE: Object to this request as multifarious and vague. Subject to these objections: Denied.

REQUEST FOR ADMISSION NO. 92: Admit or Deny that Albert breached the FSA.

RESPONSE: Denied.

REQUEST FOR ADMISSION NO. 93: Admit or Deny that Albert breached the CSL.

RESPONSE: Denied.

REQUEST FOR ADMISSION NO. 94: Admit or Deny that you are bound by the conditions of the FSA.

RESPONSE: Admit that some of the provisions of the FSA apply to Pentex Foundation and any other successor to the interest originally conveyed to Mr. Barcroft.

REQUEST FOR ADMISSION NO. 95: Admit or Deny that Danny Unger has been your Legal Representative since the inception of this lawsuit.

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

REQUEST FOR ADMISSION NO. 96: Admit or Deny that Albert, not Danny Unger, initiated this lawsuit on your behalf.

RESPONSE: Objection. This request is outside the scope of legitimate discovery. It invades the protections for communications made after the anticipation of litigation, the attorney/client privilege and work product communication.

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

391 Page

. ·····--------------

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

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

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

RESPONSE: Denied.

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

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

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

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

Respectfully submitted,

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

PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page 27

Exhib1t

392 Page 2?

CERTIFICATE OF SERVICE

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

PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GillBS Page28

393 Page J:Y

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

--'-7--i"'---"""''----

. I reside at 1 am the designated representati e of P ntex Foundation, that I have read the above and foregoing Answers to Interrog~tories and subscribes to the same on behalf of Pentex Foundation; that said-responses, subject to inadvertent or undiscovered errors, are based on and therefore limited by the records and information still in existence, presently recollected and this far discovered in the course of the preparation of these responses; that, consequently, 1 reserve the right to make changes in responses if it appears at any time that omissions or errors have been made therein or that more accurate information is available; and that subject to the limitations set forth herein, the said responses are true and correct and within my personal knowledge. I have been advised that Rule 1,97·~(d)(7)Jig.~s. notrequireJ~at) swear to interrogatory answers about persqns .Y!'!.tP.. IQ19.\\f·!e.'!.g~-.of, r~J~Y¥.!~ :f~9ts.t·.,b.Ji~l witnesses or legal contentions. Since I am not an attorney, I therefore do not swear to the truth of any interrogatory llnswers con~ining information.: ,~bout persons with knowledge of relevant facts, trial witnesses 'or legal contentions. I declare under penalty of: perJury that the foregoiii.g,iostrumen~ls,ti.ui-:atid~oroe~t.:~ ·: ~~·~=:: : <.' .· ·· .- :; .

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395

'I

PLAINTIFFS EXHIBIT

F

Statement Given Under Penalty of Perjury

I, Albert lynn Barcroft, being born on August 20, 19461n Rotan, Texas, give the following statement under penalty of perjury under the laws of the United States of America.

I am a resident of Guatemala, Central America, and have resided here for more than five (5) years without interruption. I am aware that I have been asked to attend a hearing and other legal pro-ceedings hi the United States. f hereby certify and affirm the following for the record:

1. I am not a'l employee of PENTEX FOUNDATION;

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

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

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

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

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

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

Further, I certify under penalty or" perjury under the prevailing laws of the State of Texas that the statements in this document are true and correct, and not intended to mislead.

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

y

Agent/Legal Representative PENTEX FOUNDATION

r.•.

Exhibit

Page _ _._·_

396

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SCOTT SMITH ~~. (9 ~ftc AHORNEY ANDCOUNSELORATLA\\ ----

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E-MAIL: smithlaw@airmail.net 1 ~u~OCKEQ>SrREET FACSIMILE: (903) 870-1446 ...o P.O. Box 354 TELEPHONE: (903) 868-8686 SHER~~-'··. TEXAS 75091-0354 ~ September 18, 20 14

Nancy Young, District Clerk Fannin County Courthouse 101 East Sam Rayburn Dr., Ste. 201 Bonham, Texas 75418

RE: Pentex Foundation v. Kenneth Vern Gibbs, et al.; Cause Number CV -14-41665 in the 336th Judicial District Court ofFannin County, Texas.

Dear Ms. Young:

Enclosed please find an original and one copy of the Sworn Affidavit of Fact of Angelli Martha Pollanco Carrasco. This is submitted in support of the previously filed Motion to Quash or for Protective Order Relating to Subpoenas and Deposition Notices (filed September 4, 2014). Please return a file marked copy to me in the enclosed envelope.

A copy of this letter and the enclosed is being forward to all counsel of record, by electronic transmission pursuant to a Rule 11 Agreement. I thank you for your attention to this matter.

TSS/bhs

397

I am currently serving as Board Member and Officer of Pentex Foundation, a not for profit foundation created under the laws of the Republic ofPIIIU!ma, Cenlral America. I am a I"C8idenl of the Republic of Panama, Cenlrat America. J am aware that I have been asked to attend a hearing and participate in other legal proceedingll in the United States.

Originally, John Skotnik was hired to proseo;ute the lawsuit on ·behalf of .Pcntex Foundation; however, ba.•ed upon what was relayed to Pentex Foundation as a ~ible conflict of interest, he resigned, and Scott Smith was hired to proceed with the matter on behalf of Pentex Foundation. 1 have no other knowledge of particulars of the lawsuit.

J am not employed by Pentex Foundation, and I am not paid by Pentex Foundation. I am a voluntary, unpaid, board member and officerofPenlex Foundation, and Pentcx Foundation does not control my activities or time. Pentex Foundation cannot compel me to attend to matters in the United States, and I do not have a visa to travel to the United States.

Further, I am an attorney licensed under the laws of the Republic of Panama, and I understand law. I am not subject to personal service under the laws ofthe State of Texas as I do not have "minimum contact" with the State of Texas. [conduct no business in the State of Texas. I ha~·c nl) interest in the State of Texas. I have never even visited the State l)fTexas. As such, 1 am not subject w service from Te,..as courts under Texas law.

FURTHER, AFFIANT SAYETH NOT.

Signed and AekAowledged under penalty of perjury on this 16'" day of September, 2014, in Panama City, Republic of Panama, Central

398

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~ ~~tlfP L~~} i;,:q~'·-,c·-·-··~<;.\~~, ·~:.;?p (• n ~-~ ~,;.-· p, .• Angelli Martha Polanco Carrasco, being of SOU1ld mind, over age of majority, com"':tent to testifY, and having a first hand knowledge of the facts contained herein, hereby certify and '•-.;;·,:-..-.,,.•• ~""'. declare that the following filets are true, correct and complete as stated, and are so stated under the penalty of perjury:

l am currently serving as Board Member and Officer of Pentex Foundation, a not for profit foundation created under the laws of the Republic of Panama, Cenlm! America. J am a resident of the Republic of Panama, Cenlml America. I am aware that I hav"' been asked to. attend a hearing and participate in other legal proceedings in the United States.

Originally, John Skolnik was hired to prosecute the lawsuit on ·behalf of ,Pentex Foundation; however, based upon what was relayed to Pentex Foundation as a J>OS§ible confii<lt of interest, he resigned, and SeoU Smith was hired to proceed with the matter on behalf of Pentl!'x FOundation. I have no other knowledge of particulars of the lawsuit.

I am not employed by Pentcx Foundation, and I am not paid by Pcntex Foundation. I am a voluntary, unpaid, board member and officerofPentelt Foundation, and Pente" Foundation does not control my activities or time. Pentex Foundation cannot compel me to attend to matters in the United States, and I do not have a visa to travel to the United States.

Further, I am an attorney licen.wd under the laws of the Republic of Panama, and I understand law. I am not subject to personal service under the laws of the State of Tell.as as I do not have "minimum contact" v.ith the State of Texas. I conduct no business in the State of Texas. I have no interest in the StateofTexas. I have never even visited the State ofTe,.as. As such, I am not subject to service from Texas courts under Te:<as law.

FURTHER, AFFIANT SAYETH NOT.

Signed and Acknowledged under penalty of perjuey on tbls l6o. day of September, 21114, In Panama a1y, RepubUc of Panama.

~o, JU~IA H. CORREA ORTIZ, Notari~ Publlca Duodecinel C1rcuilo de Panama, con ceduJa No. 9-53-7?:-

CERTlFICO:

Notaria Pttbtica Ouodecima

399

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Pais PANAMA. E.l ~··r"sente documento ., r... ·it1:; fi'·· · 'c· oor-J..t.A-'-"'::::::::::::.-~~:;;;...-

qui.:tl' 't'-' utid (j:_::::....lt.l-ii::J.~.::!::::.:::...f y est<> ..,e.· ....• ,i~l ~elloftkn~ d CE.:-tTI;: ICAOO - EN Penam& 5 tt• T1 ltf ·mlr'

par Olf,:t:CCION ADMINtSl n .••• ~ 1 B~jc sl numero- !5:£.?K// _ -hr'"· •" <:irr ~~/foU.J!~

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Page 1 of 1

Scott Smith

From: "Scott Smith" <smithlaw@airmail.net> To: "Christy Lee" <clee@christyleelaw.com>; "Howard Gibbs" <hkgibbs@gmail.com> Sent: Thursday, September 18, 2014 10:15 AM Attach: 14-9-1 B Clerk re Affidavit.pdf Subject: CV-14-41665 Letter to Clerk Attached

Scott Smith Attorney and Counselor At law 120 South Crockett Street P.O. Box354 Sherman, Texas 75091-0354 Facsimile 903.870.1446 Telephone 903.868.8686

400 9/1

401

.

•

CAUSE No. CV-14-41665

PENTEX FOUNDATION )

~TIW, )

)

vs. )

)

KENNETH VERN GIBBS; AND ) CANDACE GmBS WALTON; AND ) HOWARD KIRK GIBBS, )

DEFENDANTS. ) FANNIN COUNTY, TEXAS

OBJECI'IONS TO MOTION TO QUASH OR FOR PROTECTIVE ORDER RELATING TO SUBPOENAS AND DEPOSmON NOTICES AND MOTION TO COMPEL DEPOSmONS OF ALBERT BARCROFf AND ANGELU CARRASCO ON OCTOBER 13, 2014

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

through their Counsel ofRecord, Law Offices of Christy Lee, P.C., and, in response to Pentex's

Motion to Quash or- for Protective Order Relating to Subpoenas and Deposition Notices,

respectfully move the Court to compel the depositions of Albert Barcroft, Pentex Foundation's

("Pentex") Legal Representative; and Angelli Carrasco, President, Director, and Chainnan of

Pentex; and further request that the Court disallow Pentex' s Objections to the requests for

production of documents by the named Deposed.

I. LAW.

1. Texas Disciplinary Rules of Professional Conduct Rule No. 4.02 requires that, in

representing a client, a lawyer should not communicate with, nor "cause or encourage," another

to communicate about the subject of the representation with a person or entity the lawyer

"knows to be represented by another lawyer'' without consent of the other lawyer.

0BrncnONS TO MOTION TO QUASH OR FOR PR01EC11VE ORDER RELA11NG TO SUBPOENAS AND OEPOSmON NOTICES AND MOTION TO CoMPEL OEPOSffiONS OF ALBERT BARCROFT AND CAUSENO. CV-14-41665 ANGELLICARR.ASCOONOcroBER 13,2014 -1-

PBNTEX FOUNDATION II. GIBBS, E1' AL.

402

..

2. Texas Rules of Evidence Rule No. 503(d)(l) specifically disallows a claim of

privilege when there is furtherance of crime or fraud: "If the services of the lawyer were sought

or obtained to enable or aid anyone to commit or plan to commit what the client knew or

reasonably should have known to be a crime or fraud."

3. The Court determined that a joint defense or common interest privilege under

Texas evidentiary rules did not apply to prevent production of communications occUlTing

between an attorney and a non-represented, non-named, but relevant party in a proceeding. The

Court observed that "Rule 503(b)(l)(C)'s privilege is more appropriately termed an 'allied

litigant' privilege." The Court found that "joint client" rule of privilege is inapplicable when

there are no arguments or evidence offered that the attorney represents the party claiming

privilege. In re XL Specialty Insurance Company and Cambridge Integrated Services, Group,

Inc., 2012 WL 2476851 (Tex. June 29, 2012).

4. The scope of discovery is any unprivileged information relevant to the subject

matter of the lawsuit, even if it would be inadmissible at trial, as long as the information sought

is reasonably calculated to discovery of admissible evidence. Axelson, Inc. v. Mcllhany, 798

S.W.2d 500,553 (Tex. 1990).

5. In general, attorneys' fees are not shielded from disclosure. Borden, Inc. v.

Valdez, 773 S.W.2d 718, 720-21 (Tex.App.- Corpus Christi 1989, orig. proceeding); Duval

County Ranch Co. v. Alamo Lumber Co., 663 S.W.2d 627, 634 (Tex. App. - Amarillo 1983,

writ refd n.r.e.). An exception to this general rule is in the instance when revelation of fee

arrangements would implicate the client in the commission of a crime or to show an admission

OBJECTIONS TO MOTION TO QUASH OR FOR PROlECTIVE ORDER RELATING TO SUBPOENAS AND DEPOSmON NOTICES AND MOTION TO COMPEL DEPOSmONS OP ALBERT BARCROFT AND CAUSENO. CV-14-41665 ANGELLl CARRASCO ON OcToBER 13,2014 -2-

PENTEX FOUNDATION V. GIBBS, ET AL.

403

subjecting the client to civil liability. Jim Walter Homes, Inc. v. Foster, 593 S.W.2d 749, 752

(rex. Civ. App.- Eastland 1979, no writ).

ll. DEPosmoN OF ALBERT BARCROFT.

6. On September 2, 2014, Ken and Candy issued Albert a State of Texas Subpoena

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

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

0354. See Exhibit A.

7. Albert Barcroft's deposition is paramount to achieving justice in this matter.

Evidence proves, and Ken and Candy know, that Albert is the alter ego of legal representative

of Pentex; Pentex Royalty Trust; Renhaw, Inc.; and GBU Friends and Associates Trust ("GBU

Trust''); all of which are major players in this Cause. The evidence obtained thus far during this

lawsuit proves that Albert possesses exclusive information pertinent to this suit. Albert is the

touchstone for this matter. 1

8. Service of the Subpoena to Albert was appropriately made through Pentex's

Counsel, Scott Smith. Texas Rules of Civil Procedures require communications between

opposing parties to occur between counsel when the parties are represented by counsel. Albert

has portrayed himself as Legal Representative of Pentex since Pentex was founded in 2008.

During discovery, Pentex admitted that Albert is its Legal Representative in matters based in the

United States. Since Scott represents Pentex, service of a Subpoena to the asserted Legal

1 A more thorough examination of Albert's services as Pentex's Legal Representative can be found in Defendants' Motion for Leave of Court to File Third-Party Petition, filed with this Court on September 18, 2014.

OBJECllONS TO MonON TO QUASH OR FOR PROTECTIVE ORDER RELATING TO SUBPOENAS AND DEPOSmON NoTICES AND MonON TO CoMPEL DEPOSmONS OF ALBERT BARCROFT AND CAUSENo. CV-14-41665 ANGELLl CARRASCO ON OCTOBER 13,2014 -3- PBNTEX FOUNDATION 1'. GIBBS, E1' AL.

404

Representative of Pentex would be highly inappropriate if effected through any party but Scott.

Any suggestion that Scott does not rt~:present Albert perpetrates a fraud before the Court.

9. While deliberately withholding infonnation as to the named representative for

Pentex, Scott stated that, on multiple occasions, he spoke with Albert concerning this Cause.

Also, during the discovery process,·on September 3, 2014, Pentex admitted that, at the time of

the alleged damage done to Pentex, Albert "had the authority to carry on all business in the

United States for Pentex Foundation." See Exhibit B, Admission No. 25. Pentex stated that it

worked with Albert concerning what would evolve into some of the major points of contention

in this lawsuit because doing so was "mutually advantageous." And, affinned Pentex,

"Barcroft was our express liaison with GWB Trust'' (emphasis added). See Exhibit B,

Interrogatory No. 2.

10. On September 3, 2014, Albert signed a statement under penalty of perjury, in

which he admitted that he is "an agent for Pentex." See Exhibit C.

ll. The Court is clear on the point that a claim to joint defense does not necessarily

translate into client-attorney privilege. Joint defense applies only in cases of the "allied litigant."

Pentex and Albert refuse to admit that Albert is Pentex's allied litigant. Pentex cannot arbitrarily

state that Albert is not Scott's client, and therefore Pentex has no control over him, and Pentex

is not required to produce him for questioning, while at the same time Pentex states that the

proposed questions to be posited to Albert during the deposition are covered by attorney/client

communication privilege. In other words, Pentex cannot have it both ways. Either Albert and

Pentex are working together,jointly, or they are not. Either Albert is not Scott's client, in which

case Albert can be freely questioned regarding the suit because there is no client-attorney 0BJEC1TONS TO MOTION TO QUASH OR fORPROI'EC11VE ORDER REl.AnNG TO SUBPOENAS AND DEPOSll!ION Nona:s AND MoTION TO COMPEL DEPOSmOHS OF ALBERT BARCROFT AND CAUSENO. CV-14-41665 ANGELL! CARRASco ON OCTOBER 13,2014 -4-

PBNTEX FOUNDATION Y. GIBBS, Er AI.

405

privilege, or Albert is Scott's client, in which case Albert was appropriately noticed the

Subpoena, and Pentex must produce him for the deposition. Those are the only two (2) options

available. To suggest otherwise insults the Court, particularly since Albert has been the

Counsel's point of contact for PeJltex throughout these proceedings, and Pentex only recently

detennined who would represent it regarding this suit

12. The law has established that a broad scope of discovery is appropriate in the

likelihood of the discovery 'leading to relevant facts. Albert possesses infonnation to which Ken

and Candy are entitled as Defendants in this matter, infonnation which Albert alone knows, and

information which is highly pertinent to this case or which promises to lead to highly relevant

facts. Albert was at Pentex's helm throughout all events relevant to this suit, including: (1) the

drafting the Contract for Sale of Land (''the CSL'j2; (2) agreeing, on behalf of Pentex, to the

distributions of attorney fees as relevant to the Estate; (3) signing the Family Settlement

Agreement ("the FSA"), which addressed the methods by which some of the Heirs to the Estate

would receive their inheritances and which involved Albert; (4) on behalfofPentex drafted and

issued a "formal Notice of RevQCation of GWB ... Trust and split of assets pursuant to the

original contract between the parties"; and (5) on behalf of Pentex, threatened the GWB Trust

Trustee to inappropriately assign· 57.19% interest of GWB Trust assets to GBU Trust

13. Albert orchestrated the inappropriate assignment of GWB Trust interest to GBU

Trust. Also, Albert's history is rife with federal income tax issues, including lost battles in

Court and seizure of his personal residence in Texas. As a result, Albert turned to the ''funnel"

:lAlbert illegally drafted the CSL, a fact established on July 31, 2014, in Tanant County Probate Court No.2, Cause No. 2005-0000126-2-D. The parties to the CSL involved the three (3) Defendants in this matter and Albert himself. OBJECTIONS TO MonON TO QUASH 0~ FOR PR.orncnvE ORDER RElATING TO SUBPOENAS AND OEPOSmON NOTICES AND MOTION TO COMPEL OEPosmoNS Of ALBERT BARCROFJ' AND CAUSE NO. CV-14-41665 ANGELLICARRASCOON0croBER 13,2014 . -5-

PENTEX FOUNDATION V. GIBBS, ET AL.