Petition — Rubin v. U. N. Industries, Inc.

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79-1350 | ‘Fired

No. - MAR 38 1980

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In the

Supreme Cowt of the United States

JOEL D. RUBIN et al. and JAMES D. ALEX, and

JOSEPH RUBENSTEIN, et al.,

Plaintiff s-Petitioners,

vs.

U. N. INDUSTRIES, INC., et al.,

Defendants-Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

LAW OFFICES OF:

WILLIAM HENNING RUBIN

188 W. Randolph — 714

Chicago, Illinois 60602

263-6780

UNITED STATES LAW PRINTING CO., CHICAGO, ILLINCIS 60618 (312) 525-6581

ERK

INDEX

PAGE

puemeeememe TOGO © noone ssn... 2

IIIT = 70h. cede Aidhcta thal plaitinseceidicaianpindiecbn eassteneneprontess 3

Point One: Reasons for Granting Writ of Certiorari

The newly discovered evidence, the letter addressed

to Frank J. Green Jr. Secretary of U. N. Indus-

tries, Inc., San Antonio, Texas; and the Telegram

acknowledging the receipt of the proceeds of sale,

clearly confirms that the sale from Harry Mosser,

Sr. to U. N. Industries, Inc. was consummated ....

Point Two: All Oil and Gas Leases and Mineral in-

terests and personal property described in the

geological evaluation and report made by C. A.

Kuhlmann dated October 1, 1967; (and referred to

as Exhibit A in the contract of sale between U. N.

Industries, Inc., Paul Dawson and Harry J.

Mosser, Sr. dated September 14, 1968) have been

fully assigned to U. N. Industries, Inc. and all

payments incident to the escrow agreement of

November 14, 1968 having been paid _ ................

Point Three: Harry Mosser, Sr. and the Bank of the

Southwest and so-called class counsel are estopped

to deny the fact that $80,000 was spent by U. N.

Industries, Inc. from the funds it obtained from

the shareholders who bought directly from the

corporation and not from a broker to drill on the

(SECS AL PTE: 2 ea ae ae nC OE

ii

PAGE

Point Four: The Order modifying the Class definition

that:

‘*All persons who purchased free tradeable

shares of stock of U. N. Industries, Inc. on the

over-the-counter market through a_ broker-

dealer during the period from July Ist, 1968

to and including December 26, 1968)

Is an erroneous Order and contrary to the author-

ization received by plaintiffs’ class counsel from

EN ESET SNE a” A OE RSE 15

ee ee teh iced 17

Appendix :

Letter of 11/26/68 consummating the sale ...App. 1

Telegram Mosser to Paul Dawson confirming

(1 Retard Cant Pat, Minera Oe, Ramee ate de App. 2

Letter of Gilbert Andreem .22..2.........ccecccceceeeecesees App. 3

U. S. Court of Appeals Order approving

EERE REET ERR UE ENTE LOR MISA, MEET App. 5

Request for Admissions—Motion by William

Henning Rubin to Mosser, Sr. and the Bank

Ie RS co sone titi aes ccsadicessepeh cotenbarie App. 15

iii

AUTHORITIES CITED

Cases

PAGE

In re: Celotex Co. D. C. Del 1935, 12 F Supp 1, 5........ 16

Fay v. Noia, 382 US 391, 9 L Ed 2d 817 000... 6

Gilmore v. Strescon Industries, Ine., 66 FRD 146, 153 12

Greater Boston Television Corporation v. Federal

Communications Commission, 463 F 2d 268 ............ 16

Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322

U.S. 238, 64 S Ct 997, 88 L Ed 1250 (1944) 0... 17

In re: Indiana Central Tel Co. D. C. Del 1988 24 F.

| BER RORR ORD ORE oes FSET NAD 2 ae ee 16

In the Matter of Point Building Land Co., D. ©. S. D.

sb SPR 8 RF SINE axes 16

Rozier v. Ford Motor Co., 573 Fed Rptr 2d 1382 ........ 12

Saenz v. Keridy, 178 F 2d 417, 419 ...0....... eee 12

In re: Utilities Power & Lt. Corp. D.C. N.D. Ill. 1939,

ST PIER: WHR: A Contanessenetsussanuteneadiceceubibinetdudbeucinnitieesniieianiec 16

ee

In the

Supreme Cowt of the United States

No.

JOEL D. RUBIN et al. and JAMES D. ALEX, and

JOSEPH RUBENSTEIN, et al,

Plaintiff s-Petitioners,

V8.

U. N. INDUSTRIES, INC., et al.,

Defendants-Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioners Joel D. Rubin, et al., James D. Alex and

Joseph Rubenstein respectfully pray that a Writ of Cer-

tiorari issue to review the judgment of the United States

Court of Appeals approving a settlement offered by Harry

Mosser, Sr. and the Bank of the Southwest.

Petitioners Further Petition For A Review of the Order

of the United States District Court that modified the class

definition that:

‘¢ All persons who purchased free tradeable shares of

stock of U. N. Industries, Inc., on the over-the-counter

market through a broker-dealer during the period

from July 1, 1968 to and including December 26, 1968”’

2

are the only persons who can share in the proceeds of

settlement.

The Order of the United States Court of Appeals ap-

proving the settlement is included in the Appendix.

JURISDICTIONAL STATEMENT

The jurisdiction of this Court is invoked pursuant to

28 U.S.C. Section 1264.

Petitioner seeks certiorari to issue to the United States

Court of Appeals requiring it to vacate its order approv-

ing the order of the District Court, approving a settlement

to be shared in only by ‘‘all persons who purchased free

tradeable stock of U. N. Industries, Inc. on the over-the-

counter market during the period from July 1, 1968 to

and including December 26, 1968.’’

QUESTIONS PRESENTED

Can the Court deny Petitioners the right to rescind the

sale to Mosser, Sr. under Rule 60(b), (1), (2) and (3) of the

Federal Rules of Civil Procedure when newly discovered

evidence confirms that the sale to U. N. Industries, Inc.

was consummated to U. N. Industries by Mosser, Sr., as

confirmed in a direct telegram to Paul Dawson the then

President of U. N. Industries, Inc. (Copy of the telegram

is attached hereto as part of the Appendix.)

Can Mosser, Sr. and the Bank of the Southwest jointly

be permitted to profit by this transaction of having re-

ceived jointly in excess of $6,000,000 which neither of them

acknowledged until they were required to file an Answer

to the Request for Admissions filed by William Henning

Rubin against Harry J. Mosser, Sr. and the Bank of the

Southwest. (Copy of the Request for Admissions appears

in the Appendix hereto.)

ARGUMENT

POINT ONE

REASONS FOR GRANTING WRIT OF CERTIORARI

THE NEWLY DISCOVERED EVIDENCE, THE LET-

TER ADDRESSED TO FRANK J. GREENE JR., SECRE-

TARY OF U. N. INDUSTRIES, INC. SAN ANTONIO,

TEXAS; AND THE TELEGRAM ACKNOWLEDGING

THE RECEIPT OF THE PROCEEDS OF SALE, CLEAR.

LY CONFIRMS THAT THE SALE FROM HARRY

MOSSER, SR. TO U. N. INDUSTRIES, INC. WAS CON-

SUMMATED.

The Receiver, Peter V. Fazio, with approval of the

Court quitclaimed whatever right, title and interest the

Receiver had to those certain oil wells that were pre-

viously assigned to U. N. Industries, Inc. to Carmel F.

Davis, the brother-in-law of Mosser, Sr.

Mosser, Sr. was never personally released.

That neither the Receiver or his attorney at the time

of the conveyance from the Receiver to Carmel F. Davis

had any knowledge whatsoever that what the Receiver was

conveying was an interest that was owned one hundred

percent by U. N. Industries, Inc. and was not a contigent

interest, since Mosser led the Receiver and the Rece:ver’s

attorney to believe that he had never consented to the sale

since he had not received all of the proceeds of the sale.

That statement that he never consented to the sale was

found to be completely false and untrue as confirmed by

the documents that were discovered after the conveyance

was made and the sale confirmed by the Court. Mosser

4

used the Bank of the Southwest as a crutch, claiming it

would not consent. When a request for admissions was

filed, the Bank of the Southwest admitted it was paid in

full.

The information that the sale was consummated and con-

firmed by Harry Mosser, Sr. personally to U. N. Industries,

Inc. both in the form of a letter and in a telegram was

information that was not available to either Fazio or his

Counsel Rubin at the time cf the conveyance of the oil

runs. (Emphasis ours).

It was the Widow Kuhlmann who discovered the letter

and the telegram at a later date.

Her husband Clarence Kuhlmann was the petroleum en-

gineer who was employed by both U. N. Industries, Inc.

and Harry Mosser, Sr. to prepare a map reflecting the

exact locations where the leases were located that Mosser,

Sr. was conveying to U. N. Industries, Inc.

The letter written on H. J. Mosser Oil and Gas Company

stationary, Alice, Texas, under date of November 26, 1968

to Frank J. Greene, executed jointly by Harry J. Mosser,

Sr. and Paul Dawson, recites the following:

‘“‘This letter will serve to confirm our agreement

whereby all oil and gas leases and mineral interests

and personal property described in the Geological

evaluation and Report made by C. A. Kuhlmann, dated

October 1, 1967, (and referred to as Exhibit A in the

Contract of Sale between U. N. Industries, Inc., Paul

Dawson and Harry J. Mosser, Sr., dated September

14, 1968) have been fully assigned to U. N. Industries,

Inc. and all payments incident to the escrow agree-

ment of November 14, 1968 have been paid.

‘*S/ Harry J. Mosser, Sr.

‘*S/ Paul Dawson.’’

4)

The acknowledgment from Harry Mosser, Sr. that he

received from Paul Dawson the sum of $60,000 on Feb-

ruary 4, 1969 and that the Contract between Mosser and

Dawson is in full force and effect, is an additional item

that did not come to light until the ‘‘ Widow Kuhlmann’’

disclosed the existence of the document. (Emphasis ours).

In neither of the communications—either the telegram

or the letter—that the deal was consummated is it made

subject to the consent of the Bank of the Southwest.

Under these circumstances, shareholders Joel D. Rubin,

et al., James D. Alex and Joseph Rubenstein, et al., have

a right to petition the Court with supporting documenta-

tion.

Pursuant to Rule 60(b), (1), (2) and (3) of the Federal

Rules of Civil Procedure, a Petition to Rescind the sale

must be given a complete hearing by the Court. .

In fact, the Receiver and Class Counsel should have

joined in the Petition to Rescind the sale to those nominees

of Mosser, Sr. since the value of those oil leases is not

what Mosser, Sr. or the Bank of the Southwest offered

to pay the shareholders, but is the value of those oil

leases.

The recent communication of Gilbert Andreen, which

is being filed with this Petition for Certiorari as part of

the Appendix, confirms that for the months of July,

August and September of 1979, the oil wells on the leases

in question, formerly owned by U. N. Industries, Inc. pro-

duced 996,000 M.C.F. at $1.85 per M.C.F.

For that volume of production with eighty percent

thereof assigned to U. N. Industries, Inc. calculated at a

price of $1.85 per M.C.F., the oil leases on that property

are presently producing at the rate of 114 million dollars

per year.

6

The District Court was requested to send the matter to

a special magistrate to hold hearings and take evidence on

the question of rescission. The District Court denied that.

The United States Court of Appeals also denied the

right to have the matter heard by a magistrate who would

hold hearings on the question of rescission.

There was no change in the position of either party until

Counsel Rubin filed his request for admissions against

Harry Mosser, Sr. and the Bank of the Southwest.

When the Bank responded to the Request for Admis-

sions, it was required for the first time (emphasis ours)

to admit that it no longer had any debt due it from Mosser,

Sr. or his family.

Up until that point the Bank of the Southwest was used

as a crutch by Mosser to constantly state that the Bank

will not agree to a settlement of the case when it was

offered that U. N. Industries, Inc. surrender fifty percent

of the production to the shareholders and fifty percent for

Mosser.

The case of Fay v. Noia, 382 U.S. 391, 9 L.Ed.2d 817,

is exactly in point since that case held that a federal court

has broad powers of habeas corpus to hold an evidentiary

hearing and determine the facts.

The same principle applies to U. N. Industries, Inc. as

under the Fay v. Nois case, ibid. It was mandatory that

an evidentiary hearing be held of all the facts.

The testimony of Paul Dawson the original President

who consummated the deal with Harry Mosser, Sr.—at

the hearing before the Honorable Bernard Decker—that

he received a telegram from Harry Mosser, Sr. acknow)l-

edging the consummation of the Contract, and the other

7

documents, made it mandatory upon the District Court to

rescind the sale since that evidence was not available while

Paul Dawson was incarcerated.

Neither Mosser nor the Bank of the Southwest revealed

the true facts of the case, and yet they seek to do equity

and have forgotten the principles: that he who comes into

equity must come into equity with clean hands.

The District Court was blinded by the fact that al-

though approximately one million dollars was offered in

the settlement, the settlement in today’s market if petro-

leum experts were called in to testify would be around

$10,000,000.

The Mosser interests were duty bound to inform the

Court that they had paid off the Bank, and it was just

a question of consummating a settlement between the liti-

gants which was Harry Mosser, Sr. and the shareholders.

Mrs. Mosser, Sr. was not a bona fide purchaser, and

neither was he son who admitted in a deposition taken

down in Texas, at which Counsel for Petitioners attended,

that he did not know what the entire transaction was all

about, and yet Mosser, Sr. was using the son as a pawn

to try and claim that he had an interest in the lease.

The record shows that Mosser, Jr. was on the payroll

of U. N. Industries, Inc.

8

POINT TWO

MOSSER HAVING ACKNOWLEDGED ON NOVEMBER

26, 1968 THAT:

“ALL OIL AND GAS LEASES AND MINERAL IN-

TERESTS AND PERSONAL PROPERTY DESCRIBED

IN THE GEOLOGICAL EVALUATION AND REPORT

MADE BY C. A. KUHLMANN DATED OCTOBER 1,

1967 (AND REFERRED TO AS EXHIBIT A IN THE

CONTRACT OF SALE BETWEEN JU. N. INDUS-

TRIES, INC., PAUL DAWSON AND HARRY J. MOS-

‘ SER, SR. DATED SEPTEMBER 14, 1968) HAVE BEEN

FULLY ASSIGNED TO U. N. INDUSTRIES, INC. AND

ALL PAYMENTS INCIDENT TO THE ESCROW

AGREEMENT OF NOVEMBER 14, 1968 HAVING

BEEN PAID.”

IS ESTOPPED TO DENY THAT THE SALE WAS CON-

SUMMATED AND HE COULD NOT HAVE RESCIND-

ED THE SALE.

The information that Harry J. Mosser, Sr. had jointly

executed a letter to the above effect, copy of which is

enclosed in the Appendix hereto, is newly discovered evi-

dence that was not known either to Peter V. Fazio the

Receiver or his Counsel or the Court when Mosser pre-

sented an offer using his brother-in-law, Carmel F. Davis

as nominee to purchase the right, title and interest of the

Receiver to those certain oil leases that were already the

property of U. N. Industries, Inc.

The confirmation of the Agreement of November 26,

1968, was not discovered until after the death of Clarence

I’, Kuhlmann.

9

Until the discovery of the letter that there had been a

complete assignment of the leases, every one was under

the impression that the Bank of the Southwest had to con-

sent to the assignment and they were arbitrarily with-

holding the consent.

The Bank of the Southwest had been used as a crutch

and a subterfuge by Harry Mosser, Sr. to attempt to de-

feat the rights of the shareholders of U. N. Industries, Inc.

after confirmation of the sale on November 26, 1968.

Petitioners contend that pursuant to Rule 60(b), (1),

(2) and (3) of the Federal Rules of Civil Procedure it

was mandatory upon the United States District Court

upon the filing of a Petition to Rescind the Sale, that

Peter Fazio Receiver had previously made when the Court

was apprised of the fact that the receiver was actually

selling the rights and title of U. N. Industries, Inc. instead

of a contingent interest. Until the discovery of the letter

and telegram, the receiver and his counsel had always

been under the impression that all of the production of

the oil leases belonged to the Bank of the Southwest.

There was no knowledge of the existence of an Agree-

‘ment; of a telegram from Harry Mosser, Sr. acknowl-

edging the consummation of the sale to U. N. Industries,

Ine. until the disclosure by the Widow Kuhlmann. At

this point in time the Petition to Rescind the Sale having

been filed it was mandatory upon the Court to rescind the

sale.

The argument of the Court of Appeals which is set

forth in the Opinion of the Court, asserts:

‘‘The Appellants argue that certain reconveyance

of property by the Receiver back to one of the defen-

dants as part of an earlier settlement should be re-

scinded because the reconveyance was made while the

10

receiver lacked certain material information. Upon

a review of the proceedings however, it is apparent

the district court properly found the receiver had

full knowledge of the circumstances surrounding the

reconveyance. We are satisfied, furthermore, that

substantial and insurmorntable difficulties would arise

in rescinding a reconveyance that occurred over eight

years ago, and the appellants have made no show-

ing that such a rescission could place the parties in

the status quo.’’

is completely erroneous and untrue since there are no

intervening parties other than the Mosser family. In

fact, the Court admonished Mosser, Sr. that it was no

defense that the oil leases were now in the names of Susan

Mosser and other corporations in which they controlled

the stock.

The Court of Appeals in assuming that to allow the

Petition to Rescind the Sale would affect outside parties

or bona fide purchasers, was a completely erroneous find-

ing. In fact the evidence in the trial court confirmed as

Petitioner had charged, that:

‘*H. J. Mosser,

Yegua-Stillwell Gas Corp.

Central Producers, Inc.

Texas Oil and Gas Corporation

Trident Corporation

Pemac Company

XRC, Ine.

J. F. Cichowski

Cia-Bar Oil & Gas Company, and

Corpus Christi Management’’

were all nominees of Harry Mosser, Sr.

In fact, the record further discloses that it was at this

point that the Hon. Judge Decker became impatient and

requested that Harry Mosser, Sr. increase his offer when

he started to ‘‘dodge’’ behind the dummy corporations.

11

This was as a result of a motion filed by Counsel

Rubin that Mosser, Sr. be restrained from disposing, trans-

ferring, or hypothecating any of the interests he had in

those oil wells.

The Receiver Peter V. Fazio and his Counsel William

Henning Rubin at the time that the Court was requested

to approve the quitclaiming of title of the Receiver to

Carmel F. Davis, Mosser, Sr.’s brother-in-law, and nomi-

nee, were of the opinion that U. N. Industries, Inc. only

had a contingent interest in those wells.

They were absolutely uninformed that Mosser, Sr. had

executed the agreement with Paul Dawson to the effect

that the sale of the +‘) leases to U. N. Industries, Inc.

was consummated.

That information did not ‘‘surface’’ until the death of

Clarence Kuhlmann and the discovery that the ‘‘Widow

Kuhlmann’’ had in her possession both the letter and the

telegram that confirmed those facts.

The basis of the Widow Kuhlmann having those docu-

ments in her possession was that Clarence Kuhlmann was

_the petroleum engineer who was jointly employed by U. N.

Industries, Inc. and Harry Mosser, Sr. to prepare the map

and the exact location of each and every well that was

being assigned to U. N. Industries.

The telegram and the letter are the newly discovered

evidence that mandated the Court to give close scrutiny

to the manipulations that were used both by Mosser, Sr.

and by the Bank of the Southwest up until that point to

say: ‘‘The sale was never consummated since the Bank

of the Southwest never consented.’’ |

12

The United States Circuit Court of Appeals in Rozier

v. Ford Motor Co., 573 Fed. Rptr. 2d 1332 finds:

‘One who asserts that an adverse party has obtained

a verdict through fraud, misrepresentation or other

misconduct has the burden of proving the assertion

by clear and convincing evidence.’’ Saenz v. Keridy,

178 F.2d 417, 419; Gilmore v. Strescon Industries, Inc.,

66 FRD 146, 153.

Mosser, Sr. knew that he had confirmed the sale ‘‘ without

question’’ to U. N. Industries, Inc. He also was aware

that he had not arranged for the Bank of the Southwest

to consent to the oil leases whose assignment he had

agreed to.

He also was aware of the fact that he was using the

Bank of the Southwest as a crutch; and in fact it was

not until he answered including the Bank the request

for admissions which came as a surprise and caused the

offer of settlement, that it was revealed for the first

time that the Bank had been paid in full.

Up until that date everyone including the Receiver was

under the impression that it was the Bank of the South-

west that was preventing the shareholders from receiving

their interest in U. N. Industries, Inc., which they were

rightfully entitled to after paying a cash consideration

for the stock.

Rule 60(b) has always been used where information has

been wrongfully withheld from the litigants.

Mosser in withholding his information is guilty of per-

petrating the fraud as well as the Bank of the Southwest

who failed to disclose that they had been paid in full.

Since their lawyers actively participated in the proceed-

ings to set aside the sale, they were required to reveal

13

their trust position and could not hide under the subter-

fuge that Mosser, Sr. was once indebted to them. This

is grounds for rescinding the sale.

The testimony of Paul Dawson, Tr. 26, before Judge

Decker that U. N. Industries, Inc. paid for the bills in-

curred in pumping the oil and operational expenses even

though Mosser assigned the receipts from the leases to

U. N. Industries, Inc. that it was U. N. Industries, Inc.

funds that paid the operational expenses of U. N. Indus-

tries, Ine.

This is in conflict with the decision of the Court to

award a recovery to those people that purchased from a

broker instead of those who purchased from the cor-

poration.

An examination of the testimony of ‘‘Cumberland’’ who

testified on the part of the Bank of the Southwest and

when the question was propounded: At the time of the

conveyance by U. N. of those leases, there was approxi-

mately $220,000 that was being withheld by the oil com-

panies.

‘*Q. At the time of the conveyance by U. N. of

those leases, there was approximately $220,000 that

was being withheld by the oil companies in which

U. N. as a part of this deal gave a release. Weren’t

those leases on trust property, or some of those leases

on trust property?’’

reveals the following answer:

‘A, I can’t answer that. I didn’t see the source

of those released proceeds.’’

Since it was an officer of the Bank that was testifying,

he knew quite obviously from where the funds were com-

ing. Why the cover up? Were they protecting Mosser?

14

Mr. Gilbert Andreen the petroleum engineer, further

advises in his communication that the leases formerly

owned by U. N. Industries, Inc. are now under the names

of: Suzan Mosser, Mosser Trust, or H. J. Mosser, Sr.

POINT THREE

HARRY MOSSER, SR. AND THE BANK OF THE

SOUTHWEST AND SO-CALLED CLASS COUNSEL ARE

ESTOPPED TO DENY THE FACT THAT $80,000 WAS

SPENT BY U.N. INDUSTRIES, INC. FROM THE FUNDS

IT OBTAINED FROM THE SHAREHOLDERS WHO

BOUGHT DIRECTLY FROM THE CORPORATION AND

NOT FROM A BROKER TO DRILL ON THE PROP-

ERTY.

There is no evidence that has ever been offered or in-

troduced that the Bank of the Southwest objected to U. N.

Industries, Inc. drilling on trust property. Furthermore,

the checks identified in evidence by Paul Dawson confirmed

the fact that U. N. Industries, Inc. paid the cost of pump-

ing of the wells on trust property and not Mosser, Sr. or

his oil company.

If not for the funds supplied directly to U. N. Industries

by the purchasing sharehoiders, the entire Mosser, Sr.

escapade could never have taken off the ground. It was

the purchasing shareholders that provided the capitol for

U. N. Industries, Inc. and not the shareholders that pur-

chased from a broker.

a

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‘

15

POINT FOUR

THE ORDER MODIFYING THE CLASS DEFINITION

THAT:

“ALL PERSONS WHO PURCHASED FREE TRADE.

ABLE SHARES OF STOCK OF U. N. INDUSTRIES,

INC. ON THE OVER-THE-COUNTER MARKET

THROUGH A BROKER-DEALER DURING THE

PERIOD FROM JULY 1st, 1968 TO AND INCLUDING

DECEMBER 26, 1968”

IS AN ERRONEOUS ORDER AND CONTRARY TO THE

AUTHORIZATION RECEIVED BY PLAINTIFFS”

CLASS COUNSEL FROM THE SHAREHOLDERS.

Class Counsel previously notified all shareholders that

they would be represented unless they objected to the repre-

senation. U. N Industries paid the cost of this mailing.

The order modifying the class definition was completely

illegal and void because of the lack of due process.

By what authorization can you seek to represent a

litigant and then ‘‘sell him out?’’

It was those shareholders who supplied funds to U. N.

Industries, Inc. that was used to pay Harry Mosser, Sr.

his earnest money deposit plus additional funds both in

the purchase of the lease transactions as well as the gyp-

sum mine. :

When stock was purchased from a broker, the purchase

price never ended up in the treasury of U. N. Industries,

Ine. but in the hands of the speculator.

The order modifying the class was a complete sellout of

the rights of the shareholders they sought to represent.

The number of shareholders that purchased from a

broker compared with the number of shares purchased

directly from the corporation is very small.

16

A great fraud was perpetrated as a result of the Hon.

Bernard Decker entering an order modifying the definition

of the class.

U. N. Industries, Inc. did not benefit in any way because

of the gyrations of the price of stock among brokers.

It has been established law that shareholders or bond

holders cannot be limited to the price that they paid there-

for, which is supported by the case: Lorraine Castle Apart-

ment Building Corporation, 53 Fed. Supp. 994, where the

Court held:

‘*There is no occasion to limit participation in a plan

by the holders of bonds purchased during the pen-

dency of these proceedings to the amount of their

cost. In re: Utilities Power & Light Cor., D.C. N.D.

Ill. 1939, 29 F. Supp. 763, 770; In re: Celotex Co., D.C.

Del. 1935, 12 F. Supp. 1, 5; In re: Indiana Central Tel.

Co., D.C. Del. 1938, 24 F’. Supp. 342, 344; In the Matter

of Point Building Land Co., D.C. S.D. Pa. 1938, 38

A.B.R. N.S. 464, 466.’’

The decision was confirmed by the Court of Appeals

~ in 14 F.2d 55.

Petitioners call the attention of the Court to the case of :

Greater Boston Television Corporation v. Federal Trade

Communications Commission, 463 F.2d 286. The Court

in that case establishes the doctrine that a mandate secured

by fraud can be reconsidered at any time. The Court

specifically stated:

‘‘There is firmly established in the law the doctrine

confirming the power of a court to set aside at any

time any mandate that was procured by effecting a

fraud on the court. Cord v. Smith, 370 F.2d 418, 423

( th Cir. 1966). In holding that this paramount doc-

trine overrode the ‘term’ rule even when that was in

force, the Supreme Court said, in Hazel-Atlas Glass

—

«= =

17

Co. v. Hartford-Empire Co., 322 U.S. 238, 244, 64

S.Ct. 997, 88 L.Ed. 1250 (1944). . .”

Mosser and the Bank of the Southwest are the biggest

perpetrators of the fraud in this cause. They waited

twelve years and then only answered that they were paid

in full when the request for admissions was filed. Where

was the Bank? Where was Mosser all those years when

the matter was being contested in the District Court in

the matter?

The Andreen Report reflects $1,500,000 as only some of

the leases being the annual ‘‘take’’ by Mosser and his

associates. Actually: what is the entire income from all

the leases?

When one considers that the decision of the Court is to

wipe out those persons that purchased their stock directly

from the corporation, the greatest injustice has been car-

ried out through judicial channels.

CONCLUSION

It is respectfully submitted that under the case law,

Petitioners are entitled to have the sale rescinded based

on the discovery of the new evidence that U. N. Industries,

Inc. was actually the owner of the oil leases that had been

assigned to her by Harry J. Mosser, Inc.

The Bank of the Southwest had been paid in full and .

was being used as a crutch by Mosser, Sr.

That it was only after the filing of the Request for

Admission by Counsel Rubin that the Bank was obligated

to come forward and declare without hesitancy that it had

been paid in full.

It is therefore quite obvious that this proceeding was

brought not to protect speculators who bought shares from

18

a broker, but the persons that purchased shares directly

from the corporation which was the ‘‘backbone’’ of the

entire transaction.

One hundred million dollars could have been paid to

brokers, but that would not have given the corporation one

penny to pay a single worker for the work performed at an

oil pump, or to pay for the electricity for pumping the oil

or to the operator of the oil truck that delivered the oil

to the refinery.

It is respectfully submitted that the Petition for Cer-

tiorari should issue forthwith.

Respectfully submitted,

Wituiam Hennine Rustin,

One of the Attorneys for

and on behalf of:

Jor D. Rusin, et al.,

Plaintiffs-Appellants, on be-

half of himself and all other

shareholders of the Class;

and,

U. N. Inpusrriss, Ino,

Plaintiff-Appellants, pursuant

to Amendment to the 4th

Amended Complaint;

and,

James ALeEx, et al.,

Shareholders for and on behalf

of himself and all other share-

holders of his class.

Law Offices Of:

Wim Hennine Rusin

188 W. Randolph — 714

Chicago, Dlinois 60601

263-6780

APPENDIX

i TA a

H. J. MOSSER OIL & GAS COMPANY

P. O Box 145

Auice TEexas

November 26, 1968

Mr. Frank J. Greene

Secretary, U.N. Industries, Inc.

1600 N.E. Loop 410

San Antonio, Texas

Dear Mr. Greene:

This letter will serve to confirm our agreement where by

all oil and gas leases and mineral interests and personal

property described in the Geological Evaluation and report

made by C.A. Kuhlmann, dated October 1, 1967 (and re-

ferred to as Exhibit A in the contract of sale between

U.N. Iridustries, Inc., Paul Dawson and Harry \J. Mosser,

Sr., dated September 14, 1968) have been fully assigned

to U.N. Industries, Inc. and all payments incident to the

_escrow agreement of November 14, 1968 have been paid.

Very truly Yours,

/s/ Harry J. Mosser, Sr.

Harry J. Mosser, Sr.

/s/ Paul Dawson

Paul Dawson

HJM,Sr./as

App. 2

WESTERN UNION TELEGRAM

236P PDT OCT 22 68. LB226 NSB360

NS HSE191 113 Q2 EXTRA RX PDB HOUSTON TEX 22 327P

CDT

PAUL DAWSON, PRESIDENT PERSONAL DELIVERY RE-

PORT DELIVERY

UN INDUSTRIES INC 9541 WEST PICO BLVD LOSA

ON SEPTEMBER 14 1968 CONTRACT OF SALE AND AGREE-

MENT WAS MADE BY AND BETWEEN HARRY J. MOSSER,

SELLER, AND UN INDUSTRIES INC, BY ITS PRESIDENT,

PAUL DAWSON, BUYER. THE CLAUSE WHERE BUYER

IS TO PAY $300,000 HAS BEEN REDUCED TO $120,000 TO

BE PAID WEDNESDAY, OCTOBER 23, 1968, AND BALANCE

OF ORIGINAL $300,000 WILL BE ADDED TO DEBENTURE

MONEY TO BE OBTAINED AS PER ORIGINAL AGREEMENT.

ALL AGREEMENTS OF ORIGINAL CONTRACT WILL THEN

BE CARRIED OUT. FURTHERMORE, UN INDUSTRIES INC,

AGREES TO IMMEDIATELY START REWORKING WELLS

DISCUSSED IN BENBOLT AREA TO OBTAIN INCOME TO

HELP SELL DEBENTURES. THIS IS IN ACCORDANCE

WITH MOSSER’S AGREEMENT WITH BANK OF THE

SOUTHWEST

HARRY J MOSSER

NOT IN OFC

LEFT WORD TO CALL IF COMES

IN TONITE IF NOT WILL DLR AM

14 1968 $300,000 $120,00 23 1968 $300,000

(339).

App. 3

G. M. ANDREEN & ASSOCIATES

CONSULTANTS

OIL — GAS — MINERALS

February 5, 1980

Mr. William H. Rubin, Esq

188 W. Randolph St. Suite 714

Chicago, Illinois 60601

Dear Mr. Rubin;

Pursuant to your request the production records kept by

Dwights were reviewed to ascertain the current status of

those leases involved in the Mosser-UN Industries transac-

tion.

Gas production figures were readily available for the period

of July, August, September of 1979. During this three

month period, the gross gas production from wells on the

leases involved amount to 249,109 MCF of gas. Using the

foregoing figure as a base, the annual production for 1979

is expected to be approximately 996,000 MCF of gas. Ifa

working interest of 80% and a price of $1.85 is assumed,

the value of the 1979 production to the owners of the posi-

tion that UNI should now hold is approximately $1,475,000.

It was noted that most of the currently producing wells are

now completions which should produce for several years.

A schedule of the news wells follows.

Old wells.............. 6

|. an 4

yaa 3

| 8

Be ccihsetiewice 7

Several locations for additional wells have been applied for

and will probably be drilled shortly. The fields involved

ie. Alice, Reynolds. Ben Bolt and Orange Grove have

been and still are active drilling areas.

—

App. 4

It was also noted that the wells on leases styled H.J. Mos-

ser, Suzann Mosser, or Mosser Trust account for 38%

of the current production and in 1979 yielded approximate-

ly $560,000 to the owners of the working interest in these

leases.

The loss to UN Industries and/or its stockholders from the

failure of the Mosser transaction based on recorded pro-

duction now exceeds $10,000,000 and is increasing at a rate

of $1,500,000 per year. The total future loss may equal

that accrued to date.

If we can be of additional assistance on this matter, please

advise.

Very truly yours,

/s/ G. M. Andreen

G. M. Andreen

GMA :bls

App. 5

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JOEL D. RUBIN, et al,

Plaintiffs,

vs.

U. N. INDUSTRIES, INC., et al,

Defendants

CIVIL ACTION — Number 70 C 189

Consolidated with:

Number 70 C 336 and

Number 70 C 349

PETITION TO RESCIND SALE OF CERTAIN OIL

LEASES EXECUTED TO CARMEL F. DAVIS,

NOMINEE FOR HARRY MOSSER, SR., PURSUANT

TO ORDER OF COURT, ENTERED ON JUNE 30, 1971

NOW COME PLAINTIFFS JOEL D. RUBIN, et al, for

and on behalf of themselves and the majority of all other

shareholders and for and on behalf of U.N.Industries, Inc.

and—pursuant to Rule 60(b)(1),(2) & (3) of the Federal

Rules of Civil Procedure—petition the Court for the vaca-

tion of the Order entered on June 30, 1971 conveying cer-

tain oil leases to Carmel F. Davis, nominee for Harry

Mosser, Sr., and to rescind the sale.

That, in support of this Petition, PLAINTIFFS-MA-

JORITY SHAREHOLDERS represent unto this Court as

follows: —

1. That the Order that was entered on June 30, 1971 as-

signing certain oil leases to Carmel F. Davis, nominee for

App. 6

Harry S. Mosser, Sr., was predicated on the representa-

tion by Harry Mosser, Sr., the Bank of the Southwest Na-

tional Association of Houston, Texas, acting as Trustee

for and on behalf of the Mosser children as well as his

wife, Suzanne Mosser, and Harry Mosser, Sr, that the

Bank had refused in good faith to consent to assignment of

twenty-five (25%) percent of the oil production to U. N.

Industries, Inc., on those properties where the Bank had

a prior lien, and that the Bank had the sole authority to

consent to the assignment of the 25 percent of the oil

production from the leases;

2. Other factors have since come to the attention of

Plaintiffs-Shareholders indicating that Harry Mosser, Sr.

dictated the action taken by the Bank in refusing to con-

sent, after he had ‘‘pocketed’’ the $300,000 of U. N. funds.

3. That the Agreement covering the Order of June 30,

1971 (copy of which is attached hereto and made a part

hereof and incorporated as Exhibit A) further provides

that U. N. Industries, Inc. will receive one sixty-fourth

(1/64) interest in all oil production of wells drilled on the

property leased from Charles W. Muil, Independent Exe-

cutor of the Estate of Charles Muil, deceased.

4, That immediately following the payment of the

$300,000 to Harry S. Mosser, Sr., and the delivery of the

3,000,000 shares of U. N. Industries stock, Lawrence War-

burton, Attorney for Harry Mosser, Sr., advised Plain-

tiff, U. N. Industries, Inc., that Harry Mosser, Sr. would

arrange with the Bank to assign to U. N. Industries 25

percent of the production and he ‘‘anticipated no difficulty ’’

in obtaining the consent of the Bank.

5. That the investigation further discloses that Harry

Mosser, Sr., Carmel F.. Davis and the Bank of the South-

west National Association of Houston as Trustee cf the

Mosser interests further conspired to defeat the agreement

App.7

between Carmel F. Davis as nominee for the Mosser in-

terests and Receiver Peter V. Fazio which provided that

U. N. Industries, Inc. would retain a 1/64th interest in the

1617-odd acres of land which was covered by a lease from

Charles W. Muil Independent Executor of the Estate of

Charles Muil, Deceased.

6. That Carmel F. Davis and his associates, prior to

the confirmation of the sale of the interest of the receiver

insisted that the annual rental of $4034.75 be paid to

Charles W. Muil independent executor of the Estate of

Charles Muil, deceased, concurrently with the conveyance

by the Receiver.

7. That the receiver issued his check to Charles W. Muil

covering the sum of $4034.75 and placed a restrictive en-

dorsement on the check.

8. That to further protect all of the parties against

a default being declared by (Charles W. Muil, the indepen-

dent executor, Counsel for Plaintiffs-shareholders and the

receiver obtained a preliminary injunction against Charles

W. Muil as Independent executor, and caused an injunction

writ to be served by the U. S. Marshall for the area in

which Charles W. Muil is located.

9. That the docket of this case reflects the issuance of

the preliminary injunction and the service of the writ by

the Marshall. 2

10. That as a further conspiracy to defraud plaintiff,

U.N.Industries, Inc., and its shareholders, the Defendant

Harry Mosser, Sr., and his associates, Carmel F’. Davis and

Defendant Harry J. Mosser, Jr. and Jo Suzanne Mosser

Shanks, entered into a conspiracy with Joseph F. Cichowski

and Charles W. Muil as independent executor of the estate

of Charles Muil deceased, to defraud U. N. Industries,

Ine. of its 1/64th interest and on June 8, 1972, executed

a new lease covering the 1617-odd acres of land in Jim

Wells County, Texas, pursuant to the terms of which U. N.

App. 8

Industries Inc. was deprived of its 1/64th interest in the

oil production.

11. That Charles F. Cichowski is the same individual

with whom the Bank executed an Agreement on the Ist of

December, 1971 for the drilling of the certain areas elimi-

nating the 1/64th interest of U. N. Industries, Ine.

12. That the signature of Charles W. Muil as indepen-

dent executor of the Estate of Charles Muil Deceased, is

notarized by Lawrence H. Warburton,Notary of Jim Wells

County, Texas; Mosser’s attorney.

13. That a copy of the oil, gas and mineral lease signed

is attached as Plaintiff’s Exhibit B, and incorporated and

made a part of this Motion.

14. That the Receiver quitclaimed his interests in cer-

tain oil production to Carmel F. Davis as nominee for

Harry Mosser, Sr., on the representation that the Mosser

interests had paid the electric bills for pumping the oil

from 1968 to 1971.

15. That the representation was completely false and

untrue and the records disclose that Paul Dawson as Trus-

tee for U. N. Industries paid from his trustee account the

utility bills to pump the oil.

16. That it was that oil production pumped with the

electricity paid for by U. N. Industries, Inc. that was re-

assigned to Carmel FI’. Davis, nominee for Mosser.

17. That Counsel for Plaintiffs-Shareholders, William

H. Rubin ascertained subsequent to the assignment that

following the discontinuance of the payment of the utility

bills by Paul Dawson, that the oil gushed from the ground

by its own force since Mosser Sr. and his company, Mosser

Gas and Oil Company had failed to pay any of the utility

bills contrary to their representations.

App. 9

18. Paul Dawson, the former President of U. N. In-

dustries, Inc., who was incarcerated, has recently been re-

leased and he has produced a copy of a resolution of Plain-

tiff, U. N. Industries, Inc., that Harry Mosser, Sr., was

made the Chairman of the Committee of the Board of

Directors of an oil exploration and had complete charge,

including the designation of the particular oil leases where

the drilling was to take place, and the exact spot where the

drill was to be inserted into the ground.

19. Ata Board of Directors meeting, Harry Mosser, Sr.

made the exact statement that, ‘‘I’ll bet my bottom dollar

on the amount of oil contained in my leases.’’

20. That Plaintiff-Shareholders have just become aware,

pursuant to a survey prepared by G. M. Andreen, regis-

tered professional engineer, pursuant to Report dated

November 8, 1976, (copy of which is hereto attached and

incorporated and made a part of this Petition as Exhibit

Numbered (©), that the Bank of the Southwest National

Association of Houston, Texas, as trustee for Harry J.

Mosser, Jr. and Jo Suzanne Mosser Shanks under the

agreement of November 10, 1944, executed a lease covering

specific leases reconveyed to Carmel I’. Davis guaranteeing

a lease to Joseph F. Cichowski for drilling oil and gas et

cetera. That said lease fails to provide for a 1/64th. in-

terest to the U. N. Industries, Ine.

21. That the Agreement of September 1, 1971 between

the Bank of the Southwest as Trustee and Cichowski, is a

deliberate attempt to avoid the Agreement entered into

between Carmel F’. Davis nominee for Harry S. Mosser, Sr.

and Peter V. Fazio, Receiver, which provided for the pay-

ment of the 1/64th interest in production.

22. That the said oil and gas lease was executed on

behalf of the Bank of the Southwest as Trustee by R. S.

Neuhaus, Bank Officer, who took part in the negotiations

App. 10

between the Bank of the Southwest and U. N. Industries,

Inc. in 1968 and was fully acquainted that U. N. Indus-

tries retained a 1/64th interest in the leases that Peter V.

Fazio reconveyed to Carmel F. Davis.

23. That the Andreen Report confirms that for the

first six months of 1976, 765,798 barrels of oil were pro-

duced from the McCarthy-Mosser Trust Number 1, M.

Schutte, M. Holmes, C. Dodd, G. Franks, J. Ring, and

Mosser Trusts (plus information PJA, SI leases, P & A SI

gas wells).

24. That in addition, in the year 1976 204,283 barrels

were produced. From January 1, 1976 to May 1, 1976

eight wells have been drilled on the Mosser property.

25. That thus far, not a single dollar has been received

from any of the production on the Mosser properties or the

Muil properties by U. N. Industries, Inc.

26. The Plaintiffs-Shareholders are prepared to refund

to Carmel F. Davis, Sr., nominee for Harry S. Mosser, Sr.,

the sum of $50,000 concurrently with the Order of Court

rescinding the sale to Carmel F. Davis and the reconvey-

ance of those leases to Plaintiff, U. N. Industries, Inc., the

interest of which was heretofore quitclaimed by Peter V.

Fazio, Receiver.

27. That Plaintiffs-Shareholders are prepared to refund

to Carmel F. Davis, Sr. $25,000.00 heretofore paid to Peter

V. Fazio, Receiver, concurrently with the reassignment of

twenty-five (25) percent of the oil runs to U. N. Industries,

Inc., heretofore released by Peter V. Fazio Receiver on

behalf of Plaintiff, U. N. Industries, Ine.

WHEREFORE, THE MAJORITY PLAINTIFFS-

SHAREHOLDERS HEREBY PRAY as follows:

A. That an Order be entered rescinding the agreement

between Peter V. Fazio Receiver and Carmel F.. Davis as

App. 11

nominee for Harry S. Mosser, Sr., and vacating the Order

conveying the interests of U. N. Industries, Inc. in certain

oil leases to Carmel F. Davis, nominee.

B. MAJORITY PLAINTIFF FS-SHAREHOLDERS

FURTHER PRAY that concurrently with the reconvey-

ance of those oil leases to U. N. Industries, Inc., that the

Receiver Peter V. Fazio pay to Carmel F. Davis Sr. pro-

viding said leases have not been encumbered with addition-

al liens or claims not in existence at the time of the con-

veyance to Carmel F. Davis, Sr. the sum of $50,000.

C. The MAJORITY OF PLAINTIFFS-SHAREHOLD-

ERS FURTHER PRAY That Carmel! F. Davis, nominee

and or Defendant HARRY S. MOSSER, SR., and/or De-

fendant BANK OF THE SOUTHWEST, pay to U. N. In-

dustries, Inc., 25 percent of the amount of the oil runs re-

ceived by each of them or all of them from the date of the

conveyance pursuant to Court Order entered on June 30,

1971.

D. MAJORITY OF PLAINTIFFS-SHAREHOLDERS

FURTHER PRAY That Defendants, Carmel F. Davis,

HARRY S. MOSSER, SR., and/or BANK OF THE

SOUTHWEST, pay to U. N. Industries, Inc., 25 percent

of the oil runs received by Peter V. Fazio as Receiver,

pursuant to the Court Order entered June 30, 1971 provid-

ing that U. N. Industries, Ine. concurrently repays to Car-

mel F. Davis, Sr. as nominee for Harry S. Mosser Sr. the

$20,965.25.

EK. MAJORITY PLAINTIFFS-SHAREHOLDERS

FURTHER PRAY That Defendants HARRY S. MOS-

SER, SR., and CARMEL F. DAVIS nominee for HARRY

S. MOSSER, SR., account to Plaintiff U. N. INDUSTRIES,

INC., for all funds received from the gypsum mine oper-

App. 12

ated by J. P. Boone which interest was assigned to U. N.

Industries, Inc., including all of the stock of Mosser Oil

and Gas Company.

F. MAJORITY PLAINTIFFS-SHAREHOLDERS

FURTHER PRAY That H. J. MOSSER, INC. reassign

all of the stock of Mosser Gas and Oil Company that the

Receiver delivered concurrently with the execution of the

quitclaim deeds to certain oil Jeases.

G. MAJORITY PLAINTIFFS-SHAREHOLDERS

FURTHE PRAY That they may have such further relief

as the Court may deem proper.

JOEL D. RUBIN, et al, for and on

Behalf of himself and the Majority

of Plaintiffs-Shareholders of

U. N. INDUSTRIES, INC.,

WILLIAM HENNING RUBIN

One of its attorneys.

Law offices of:

WILLIAM HENNING RUBIN

188 W. Randolph — 714

Chicago, Illinois 60602

_ 263-6780

<r nen rere

App. 13

AFFIDAVIT

WILLIAM HENNING RUBIN on oath duly sworn de-

poses and says:

1. That he filed the original proceedings in this case;

2. That he is one of the attorneys for the Plaintiffs-

Shareholders owning in excess of fifty percent of the issued

and outstanding stock of U. N. Industries, Ine.

3. That he has received specific designations from in

excess of fifty percent of the issued and outstanding stock

of U. N. Industries, Inc. to petition the court for the re-

moval of the Receiver and the restoration of the corpora-

tion to the shareholders.

4. That in 1971 when the proceedings were negotiated

between plaintiffs-shareholders and the Bank of the South-

west Association, and Carmel F. Davis as nominee for

Harry S. Mosser, Sr., Lawrence F. Warburton acted as

attorney for Harry Mosser and Carmel F. Davis, and the

law firm of Fulbright and Jaworski acted as attorney for

the Bank of the Southwest, and your affiant acted as attor-

ney for the Receiver as well as one of the attorneys for

the Plaintiffs-shareholders.

d. That the representations referred to in this petition

were specifically made by written communications, the doc-

umentary evidence of which is in the possession of Peter

V. Fazio the Receiver, and by telephone conversations be-

tween counsel for petitioners, Peter V. Fazio and William

Henning Rubin, all of said conversations having taken place

in conference calls at the offices of Chapman & Cutler at

111 West Monroe Street, Chicago, Illinois;

6. That the representations made in this Petition are

true in substance and in fact.

App. 14

AFFIANT FURTHER SAITH NAUGHT.

William Henning Rubin

SUBSCRIBED AND SWORN TO

before me this ....... day

of January, 1977.

STATE OF ILLINOIS )

SS.

COUNTY OF COOK )

VERIFICATION

WILLIAM HENNING RUBIN, on oath deposes and

says that he is one of the attorneys for Plaintiff in the

above-entitled action; that he has made a thorough exami-

nation of the books and records of U. N. INDUSTRIKS,

INC.; that he has a thorough knowledge of the transactions

that transpired between Defendant, U. N. INDUSTRIES,

INC., and the parties-Defendant hereto; that the state-

ments made in this Fourth Amended Complaint are true

in substance and in fact, except as to those matters which

are stated to be upon information and belief and as to such

matters Affiant is informed and belives that the same are

true. |

/s/ William Henning Rubin

William Henning Rubin

SUBSCRIBED AND SWORN to

before me this 14th day

of February, 1974.

/s/ Bonnie Burke

Notary Public

Ce eee

——

ea at nec Da

ee ee heer 6

PURER eo ee

App. 15

70 C 189

IN THE UNITED STATES DISTRICT COURT =>

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JOEL D. RUBIN, et al,

Plaintiffs,

versus NUMBER 70 C 189

U. N. INDUSTRIES, INC., et al,

Defendants

REQUEST FOR ADMISSION BY HARRY J. MOSSER,

SR., AND THE BANK OF THE SOUTHWEST, PUR-

SUANT TO RULE 36 OF THE RULES OF

CIVIL PROCEDURE

Request by PLAINTIFF U. N. INDUSTRIES, INC., for

admission by DEFENDANT HARRY J. MOSSER, SR.,

and the BANK OF THE SOUTHWEST, Pursuant to Rule

36 of the Federal Rules of Civil Procedure, of the follow-

ing:

1. That the Bank of the Southwest and Harry J. Mos-

ser, Sr. either individually or jointly received the sum of

$7,760,000 or more from oil production from the leases that

were originally assigned to U. N. Industries, Inc., and

which he had agreed to assign to U. N. Industries, Inc. as

more fully described in the Geological Evaluation and Re-

port made by C. A. Kuhlmann dated October 1, 1967, and

referred to as Exhibit A in the Contract of Sale between

U. N. Industries Inc., Paul Dawson and Harry J. Mosser,

App. 16

Sr. dated September 14, 1968, from January 1, 1969 to

January 1, 1976.

2. That on November 26, 1968 Harry J. Mosser, Sr. and

Paul Dawson jointly addressed a letter to Frank Greene

Secretary of U. N. Industries, Inc., confirming that:

‘‘This letter will serve to confirm our agreement

whereby all oil and gas leases and mineral interests

and personal property described in the Geological

Kivaluation and report made by C. A. Kuhlmann, dated

October 1, 1967 (and referred to as Exhibit A in the

contract of sale between U. N. Industries, Inc., Paul

Dawson and Harry J. Mosser, Sr. dated September

14, 1968) have been fully assigned to U. N. Industries,

Inc. and all payments incident to the escrow agree-

ment of November 14, 1968 have been paid.’’

3. That on November 26, 1968 Harry J. Mosser, Sr.

acknowledged that he received the sum of $60,000 from

Paul Dawson and that the contract between Mosser and

Dawson was in full force and effect.

4, That on November 22, 1968 Harry Mosser, Sr. ad-

dressed a telegram to Paul Dawson President of U. N.

Industries, Inc. confirming that all agreements of the origi-

nal contract will be carried out when $120,000 is paid to

him in accordance with Mosser’s agreement with the Bank

of the Southwest.

5. That in the first six months of 1977 Harry J. Mosser

Sr. and the Bank of the Southwest either individually or

jointly received an average of $34,384 or more per month

from oil production of the leases that he personally as-

signed to U. N. Industries, and those leases that he had

agreed to assign.

6. ‘That the debt of Mosser to the Bank of the South-

west has been paid in full or the Bank has paid to Mosser

ST TR

App. 17

or his associates either part or all of the $7,760,000 that it

received in payment of oil production from the various

leases, from January 1, 1969 to January 1, 1976.

7. Pursuant to provisions of Rule 36, the request for

admission shall be admitted unless within thirty (30) days

after service of these requests the Defendants, Harry J.

Mosser Sr., and the Bank of the Southwest serves upon

Plaintiff U. N. Industries, Inc., a written answer signed

by the Defendants.

Dated at Chicago, Lllinois

This September 23, 1977

U. N. INDUSTRIES, INC.,

Plaintiff

By /s/ William Henning Rubin

William Henning Rubin

One of its Attorneys

Law Offices of :

WILLIAM HENNING RUBIN

188 W. Randolph — 714

Chicago, Illinois 60601

263-6780