in Re Kenneth Vern Gibbs and Candace Gibbs Walton

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. ___________________

______________________________________________________________________________

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

_____________________________________________________________________________

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.

Ha rv Puhlil·, in a11l or the St al l' o f

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19

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:

Date of Orders ORDERS OF COURT

Mo. Day Year

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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:

Date of Orders ORDERS OF COURT

Mo. Day Year

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Cause No.: CV -'14-4] 665 Court: 336th District Court

Kind of Action: Contract · Other File Date: 0-1/01; 2014

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STYLE OF ('ASE

PENTEX FOUNDATION VS. KENNETH VIiRN G!l3BS AND CANDACE GIBDS WALTON AND HOWARD KIRK GIBBS

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Attorneys:

Jury Demand~:d b y : - - - - - - - - - - - -

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Paid by:-------·

Defendant:

Date of Order~ ORDERS OF COURT

Mo. Day Year

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Cause No.: CVv{4~~_l~t:.,5

Date of Orders

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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?.

"'3:~..

:.:~ ~/

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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17

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

18

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'

19

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 ...,._ ·- --

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

..

21

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

-------------.. ---·

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~~

24

·~~-~#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 '/¥'·;:

25

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\

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;

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

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 § 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"<;,/

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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 ..

.:::~.--,

hN.. .-.. ~ ... ·._,

/t.. ... -.. -· . ..... ---- -

: . (....;· ··: .---;

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

:-:

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· -·

J

Allorney at Law •, ~ '. / : c

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PO Box 727 \·r \, /Cl:) /

Bonham TX 75418 \:o~;--------~1..~/ ~

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UTHORIZED PERSON R §'

, . ' - - - ' 20_!<.:l_. Executed ~ CJ

in _ _ _ __ CJ

CJ

CJ

ew Cases Fi Jed attached there

I

I _ _,20_.

I ..

Certified Fee

"~6"'1·

Return Receipt Fee

(Endorsement Required)

f-------\---1

Restricted Delivery Fee by

(Endorsement Required) 1---__:_::..:..:,_:..:1 VERIFICATION T

--,-,----.,-----,--- 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)

29

• 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\

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:'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''"''

,10 \ 3 ·z,.t, -3o oo.-'D 4-e>f1.. 16L.J4

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Class/Service

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32

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

33

LA\\' OFFiCESiW

225 K Fn~t:W!•:ED LA:\1•:.STJ·:. 200

i\1\CHO!V\(;[i, AlASKA 99503

\I All\: 007 .a:m.HH:3 I

1<'~\: H00.4:H. 7901

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

PENT

This text is long and has been trimmed here. Open the source document for the complete record.