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2014 01 29 Appellant's Brief
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2953072
Case No. 13-10939
In the United States Court of Appeals
for the Fifth Circuit
ALBERT G. HILL, III, INDIVIDUALLY, AND AS A BENEFICIARY OF THE MARGARET HUNT TRUST ESTATE, DERIVATIVELY ON BEHALF OF THE MARGARET HUNT TRUST ESTATE, INDIVIDUALLY, AS A BENEFICIARY OF THE HAROLDSON LAFAYETTE HUNT,
JR. TRUST ESTATE, AND DERIVATIVELY ON BEHALF OF THE HAROLDSON, Plaintiff-Appellant,
v.
WILLIAM SCHILLING, INDIVIDUALLY AND IN HIS CAPACITY AS A MEMBER OF THE ADVISORY BOARD M.H.T.E AND A MEMBER OF THE ADVISORY BOARD OF THE
H.H.T.E.; IVAN IRWIN, JR.; ALBERT G. HILL, JR.; ALINDA H. WIKERT; LYDA HILL; HEATHER V. WASHBURNE; ELISA M. SUMMERS; MARGARET HUNT TRUST ESTATE;
HARDOLSON LAFAYETTE HUNT JR. TRUST ESTATE; WILLIAM HERBERT HUNT, IN HIS CAPACITY AS THE PERSONAL REPRESENTATIVE OF THE ESTATE OF TOM HUNT; BRETT
RINGLE, INDIVIDUALLY AND IN HIS CAPACITY AS A MEMBER OF THE ADVISORY BOARD OF THE M.H.T.E.; JOHN W. CREECY, INDIVIDUALLY AND IN HIS CAPACITY AS
TRUSTEE OF THE H.H.T.E.; MARGARET KELIHER, INDIVIDUALLY AND IN HER CAPACITY AS TRUSTEE OF THE M.H.T.E. AND A MEMBER OF THE ADVISORY BOARD
OF THE H.H.T.E., Defendants-Appellees,
V. STEPHEN MALOUF; LISA BLUE; BARON & BLUE; LAW OFFICES OF STEPHEN F. MALOUF, P.C.; ALDOUS LAW FIRM; CHARLA ALDOUS; CHARLA ALDOUS, P.C.,
Intervenors Plaintiffs Appellees, --------------------------------------
CAMPBELL HARRISON & DAGLEY, L.L.P.; CALLOWAY, NORRIS, BURDETTE & WEBER, P.L.L.C.,
Intervenors Appellees.
Case: 13-10939 Document: 00512516055 Page: 1 Date Filed: 01/29/2014
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On Appeal from the United States District Court
for the Northern District of Texas No. 07-CV-02020-L, Sam A. Lindsay, Judge Presiding
BRIEF OF APPELLANT
Iian D. Jablon Aarti K. Wilson IRELL & MANELLA LLP 1800 Avenue of the Stars, Suite 900 Los Angeles, California 90067 [Tel.] (310) 277-1010 [Fax] (310) 203-7199 ATTORNEYS FOR APPELLANT
Case: 13-10939 Document: 00512516055 Page: 2 Date Filed: 01/29/2014
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CERTIFICATE OF INTERESTED PERSONS
NO. 13-10939
ALBERT G. HILL III, INDIVIDUALLY AS A BENEFICIARY OF THE MARGARET HUNT TRUST ESTATE, DERIVATIVELY ON BEHALF OF THE MARGARET HUNT TRUST ESTATE, INDIVIDUALLY AS A BENEFICIARY OF THE HAROLDSON LAFAYETTE
HUNT, JR. TRUST ESTATE, AND DERIVATIVELY ON BEHALF OF THE HAROLDSON LAFAYETTE HUNT, JR. TRUST ESTATE,
Plaintiff-Appellant, v.
MARGARET KELIHER, BRETT RINGLE, JOHN CREECY, WILLIAM SCHILLING, IVAN IRWIN JR. WILLIAM HERBERT HUNT, ALBERT G. HILL, JR. ALINDA H. WIKERT,
LYDA HILL, HEATHER H. WASHBURNE, AND ELISA H. SUMMERS, Defendants-Appellees.
The undersigned counsel of record certifies the following listed persons have
an interest in the outcome of this case. These representations are made in order
that the judges of this court may evaluate their possible recusal or disqualification.
1. Plaintiff/Appellant is represented in the Fifth Circuit by:
Iian D. Jablon Aarti K. Wilson IRELL & MANELLA LLP 1800 Avenue of the Stars, Suite 900 Los Angeles, California 90067
Case: 13-10939 Document: 00512516055 Page: 3 Date Filed: 01/29/2014
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Additional counsel who represented the Plaintiff/Appellant Albert G. Hill III
in the district court proceedings are:
Eric Chenoweth Autry Ross YETTER COLEMAN LLP 909 Fannin, Suite 3600 Houston, Texas 77010
Gregory S. Coleman Christian J. Ward Richard B. Farrer YETTER COLEMAN LLP 221 West 6th Street, Suite 750 Austin, Texas 78701
Mark E. Smith R. Wayne Gordon TOUCHSTONE BERNAYS JOHNSTON BEALL Smith &Stollenwerck LLP 4040 Renaissance Tower 1201 Elm Street Dallas, Texas 75270
Alan Roy Struble ALSTON & BIRD LLP 2200 Ross Avenue, Suite 3600 Dallas, Texas 75201
Brent R. Walker Charla G. Aldous ALDOUS LAW FIRM 2311 Cedar Springs Road, Suite 2200 Dallas, Texas 75201
Dana B. Taschner DANA TASCHNER ATTORNEY AT LAW 2049 Century Park East, Suite 1940 Los Angeles, California 90067
David W. Evans LAW OFFICES OF DAVID EVANS 2811 Turtle Creek Boulevard Suite 1600 Dallas, Texas 75219
Dean D. Hunt Matt R. Raley Michelle D. Pector BAKER & HOSTETLER LLP 1000 Louisiana, Suite 2000 Houston, Texas 77002
Case: 13-10939 Document: 00512516055 Page: 4 Date Filed: 01/29/2014
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W. Mark Lanier Eugene R. Egdorf THE LANIER LAW FIRM PC 6810 FM 1960 West Houston, Texas 77069
James S. Renard Melissa S. Yost Michael J. Collins William A. Brewer, III BICKEL & BREWER 1717 Main Street, Suite 4800 Dallas, Texas 75201
John C. Hueston Michael G. Ermer IRELL & MANELLA LLP 840 Newport Center Drive, Suite 400 Newport Beach, California 92660
Stephen F. Malouf Jonathan Andrew Nockels THE LAW OFFICES OF STEPHEN F. MALOUF PC 3811 Turtle Creek Boulevard Suite 1600 Dallas, Texas 75219
Justin M. Campbell, III Kenneth J. Fair Robin L. Harrison Suzanne E. Goss CAMPBELL HARRISON & DAGLEY LLP 4000 Two Houston Center 909 Fannin Street, Suite 4000 Houston, Texas 77010
Lisa A. Blue BARON & BLUE 5956 Sherry Lane, Suite 1616 Dallas, Texas 75225
Elizabeth A. Scully Mark A. Cymrot BAKER & HOSTETLER LLP 1050 Connecticut Avenue NW Suite 1100 Washington, DC 20036
Marshall A. Camp IRELL & MANELLA LLP 1800 Avenue of the Stars, Suite 900 Los Angeles, California 90067
R. Dean Gresham GRESHAM PC 2311 Cedar Springs Road, Suite 200 Dallas, Texas 75201
Evan M. Janush THE LANIER LAW FIRM PC 126 East 56th Street Tower 56, 6th Floor New York, New York 10022
Case: 13-10939 Document: 00512516055 Page: 5 Date Filed: 01/29/2014
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Counsel who represented Defendant/Appellee Tom Hunt in the district court
proceedings are:
George W. Bramblett, Jr. Carrie L. Huff HAYNES & BOONE, LLP 2323 Victory Avenue, Suite 700 Dallas, Texas 75219
Joseph W. Wagner HAYNES & BOONE LLP 901 Main Street, Suite 3100 Dallas, Texas 75202
Counsel who represented Defendant/Appellee William Schilling in the
district court proceedings are:
George W. Bramblett, Jr. Carrie L. Huff David A. Dodds HAYNES & BOONE LLP 2323 Victory Avenue, Suite 700 Dallas, Texas 75219
David J. Beck Murray Fogler BECK REDDEN & SECREST LLP 1221 McKinney Street, Suite 4500 Houston, Texas 77010
Joseph W. Wagner HAYNES & BOONE LLP 901 Main Street, Suite 3100 Dallas, Texas 75202
Counsel who represented Defendant/Appellee Ivan Irwin, Jr. in the district
court proceedings are:
Harry M. Reasoner VINSON & ELKINS LLP 1001 Fannin Street, Suite 2500 Houston, Texas 77002
Michael L. Raiff GIBSON DUNN & CRUTCHER LLP 2100 McKinney Avenue, Suite 1100 Dallas, Texas 75201
Case: 13-10939 Document: 00512516055 Page: 6 Date Filed: 01/29/2014
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William D. Sims, Jr. VINSON & ELKINS LLP 2001 Ross Avenue, Suite 3700 Dallas, Texas 75201
Counsel who represented Defendant/Appellee Albert G. Hill, Jr. in the
district court proceedings are:
J. Keith Benedict A G HILL PARTNERS LLC 1601 Elm Street, Suite 5000 Dallas, Texas 75201
Amanda R. Tyler Eric W. Pinker Kent D. Krabill LYNN TILLOTSON & PINKER LLP 750 N. St. Paul Street, Suite 1400 Dallas, Texas 75201
C. Gregory Shamoun Dennis M. Holmgren James R. Tucker Jonathan J. Cunningham SHAMOUN & NORMAN LLP 1775 Wittington Place Suite 200 LB 25 Dallas, Texas 75234
Michael L. Raiff James C. Ho GIBSON DUNN & CRUTCHER LLP 2100 McKinney Avenue, Suite 1100 Dallas, Texas 75201
Michael P. Lynn Jeremy A. Fielding Richard A. Smith LYNN TILLOTSON PINKER & COX LLP 2100 Ross Avenue, suite 2700 Dallas, Texas 75201
Robert H. Thomas Peter M. Jung STRASBURGER & PRICE 901 Main Street, Suite 4300 Dallas, Texas 75250
Case: 13-10939 Document: 00512516055 Page: 7 Date Filed: 01/29/2014
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Counsel who represented Defendant/Appellee Alinda H. Wikert in the
district court proceedings are:
Donald E. Godwin Bruce W. Bowman, Jr. Israel R. Silvas Jenny L. Martinez Robert J. McGuire W. Ira Bowman GODWIN PAPPAS & RONQUILLO PC 1201 Elm Street, Suite 1700 Dallas, Texas 75270
Counsel who represented Defendant/Appellee Lyda Hill in the district court
proceedings are:
Frank N. Ikard, Jr. Lauren K. Davis Laurie Ratliff Mary E. Haught IKARD GOLDEN PC 400 West 15th Street, Suite 975 Austin, Texas 78701
James D. Brown Michael P. Massad WINSTEAD PC 5400 Renaissance Tower 1201 Elm Street Dallas, Texas 75201
Russell A. Devenport MCDONALD SANDERS 777 Main Street, Suite 1300 Fort Worth, Texas 76102
Kirk Todd Florence Jennifer L. Graf CROUCH & RAMEY, L.L.P. 2001 Ross Avenue, Suite 4400 Dallas, TX 75202
Case: 13-10939 Document: 00512516055 Page: 8 Date Filed: 01/29/2014
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Counsel who represented Defendant/Appellee Heather V. Washburne in the
district court proceedings are:
Stewart H. Thomas Tom M. Dees, III HALLETT & PERRIN PC 2001 Bryan Street, Suite 3900 Dallas, Texas 75201
Counsel who represented Defendant/Appellee Elisa M. Summers in the
district court proceedings are:
Stewart H. Thomas Tom M. Dees, III HALLETT & PERRIN PC 2001 Bryan Street, Suite 3900 Dallas, Texas 75201
Counsel who represented Defendant/Appellee William Herbert Hunt in the
district court proceedings are:
B. Patrick Shaw WOODWARD & SHAW 4849 Greenville Avenue, Suite 1111 Dallas, Texas 75206
Counsel who represented Defendant/Appellee Margaret Hunt Trust Estate in
the district court proceedings are:
George W. Bramblett, Jr. Carrie L. Huff HAYNES & BOONE LLP 2323 Victory Avenue, Suite 700 Dallas, Texas 75219
David J. Beck Murray Fogler BECK REDDEN & SECREST LLP 1221 McKinney Street, Suite 4500 Houston, Texas 77010
Case: 13-10939 Document: 00512516055 Page: 9 Date Filed: 01/29/2014
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Joseph W. Wagner HAYNES & BOONE LLP 901 Main Street, Suite 3100 Dallas, Texas 75202
Counsel who represented Defendant/Appellee Haroldson Lafayette Hunt Jr.
Trust Estate in the district court proceedings are:
George W. Bramblett, Jr. Carrie L. Huff David A. Dodds HAYNES & BOONE LLP 2323 Victory Avenue, Suite 700 Dallas, Texas 75219
David J. Beck Murray Fogler BECK REDDEN & SECREST LLP 1221 McKinney Street, Suite 4500 Houston, Texas 77010
Joseph W. Wagner HAYNES & BOONE LLP 901 Main Street, Suite 3100 Dallas, Texas 75202
Counsel who represented Defendant/Appellee Brett Ringle in the district
court proceedings are:
Stephen D. Susman Thomas W. Paterson SUSMAN GODFREY LLP First Interstate Plaza 1000 Louisiana Street, Suite 1500 Houston, Texas 77002
George W. Bramblett, Jr. Carrie L. Huff David A. Dodds HAYNES & BOONE LLP 2323 Victory Avenue, Suite 700 Dallas, Texas 75219
David J. Beck Murray Fogler BECK REDDEN & SECREST LLP 1221 McKinney Street, Suite 4500 Houston, Texas 77010
Stephen Shackelford, Jr. SUSMAN GODFREY LLP 901 Main Street, Suite 5100 Dallas, Texas 75202
Case: 13-10939 Document: 00512516055 Page: 10 Date Filed: 01/29/2014
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Counsel who represented Defendant/Appellee John W. Creecy in the district
court proceedings are:
Stephen D. Susman Thomas W. Paterson SUSMAN GODFREY LLP First Interstate Plaza 1000 Louisiana Street, Suite 1500 Houston, Texas 77002
George W. Bramblett, Jr. Carrie L. Huff David A. Dodds HAYNES & BOONE LLP 2323 Victory Avenue, Suite 700 Dallas, Texas 75219
David J. Beck Murray Fogler BECK REDDEN & SECREST LLP 1221 McKinney Street, Suite 4500 Houston, Texas 77010
Stephen Shackelford, Jr. SUSMAN GODFREY LLP 901 Main Street, Suite 5100 Dallas, Texas 75202
Counsel who represented Defendant/Appellee Margaret Keliher in the
district court proceedings are:
Eric T. Stahl Frank L. Branson Quentin Brogdon LAW OFFICES OF FRANK L. BRANSON 4514 Cole Avenue, Suite 1800 Dallas, Texas 75205
George W. Bramblett, Jr. Carrie L. Huff David A. Dodds HAYNES & BOONE LLP 2323 Victory Avenue, Suite 700 Dallas, Texas 75219
David J. Beck Murray Fogler BECK REDDEN & SECREST LLP 1221 McKinney Street, Suite 4500 Houston, Texas 77010
Gilbert I. Low ORGAIN BELL & TUCKER P.O. Box 1751 470 Orleans Street Beaumont, Texas 77704
Case: 13-10939 Document: 00512516055 Page: 11 Date Filed: 01/29/2014
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Counsel who represented Intervenor Plaintiff Stephen Malouf in the district
court proceedings are:
Stephen F. Malouf Jonathan A. Nockels THE LAW OFFICES OF STEPHEN F. MALOUF, P.C. 3811 Turtle Creek Boulevard Suite 1600 Dallas, Texas 75219
Alan S. Loewinsohn Kerry F. Schonwald LOEWINSOHN FLEGLE DEARY LLP 12377 Merit Drive, Suite 900 Dallas, Texas 75251
David W. Evans LAW OFFICES OF DAVID EVANS 2811 Turtle Creek Boulevard Suite 1600 Dallas, Texas 75219
Counsel who represented Intervenor Plaintiff Lisa Blue in the district court
proceedings are:
Lisa A. Blue BARON & BLUE 5956 Sherry Lane, Suite 1616 Dallas, Texas 75225
Alan S. Loewinsohn Kerry F. Schonwald LOEWINSOHN FLEGLE DEARY LLP 12377 Merit Drive, Suite 900 Dallas, Texas 75251
Counsel who represented Intervenor Plaintiff Erin Nance Hill in the district
court proceedings are:
Charla G. Aldous Brent Walker ALDOUS LAW FIRM 2311 Cedar Springs Road, Suite 2200 Dallas, Texas 75201
John H. Barr John H. House, Jr. Lucas Radney M. Forest Nelson BURT BARR & ASSOCIATES 203 East Colorado Boulevard Dallas, Texas 75222
Case: 13-10939 Document: 00512516055 Page: 12 Date Filed: 01/29/2014
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Counsel who represented Intervenor Plaintiff Baron & Blue in the district
court proceedings are:
Lisa A. Blue BARON & BLUE 5956 Sherry Lane, Suite 1616 Dallas, Texas 75225
Alan S. Loewinsohn Kerry F. Schonwald LOEWINSOHN FLEGLE DEARY LLP 12377 Merit Drive, Suite 900 Dallas, Texas 75251
Counsel who represented Intervenor Plaintiff Law Offices of Stephen F.
Malouf, PC in the district court proceedings are:
Alan S. Loewinsohn Kerry F. Schonwald LOEWINSOHN FLEGLE DEARY LLP 12377 Merit Drive, Suite 900 Dallas, Texas 75251
David W. Evans LAW OFFICES OF DAVID EVANS 2811 Turtle Creek Boulevard Suite 1600 Dallas, Texas 75219
Stephen F. Malouf Jonathan Andrew Nockels THE LAW OFFICES OF STEPHEN F. MALOUF PC 3811 Turtle Creek Boulevard Suite 1600 Dallas, Texas 75219
Counsel who represented Intervenor Plaintiff Aldous Law Firm in the
district court proceedings are:
Alan S. Loewinsohn Kerry F. Schonwald LOEWINSOHN FLEGLE DEARY LLP 12377 Merit Drive, Suite 900 Dallas, Texas 75251
Charla G. Aldous Brent R. Walker ALDOUS LAW FIRM 2311 Cedar Springs Road, Suite 2200 Dallas, Texas 75201
Case: 13-10939 Document: 00512516055 Page: 13 Date Filed: 01/29/2014
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Counsel who represented Intervenor Plaintiff Charla Aldous in the district
court proceedings are:
Alan S. Loewinsohn Kerry F. Schonwald LOEWINSOHN FLEGLE DEARY LLP 12377 Merit Drive, Suite 900 Dallas, Texas 75251
Charla G. Aldous ALDOUS LAW FIRM 2311 Cedar Springs Road, Suite 2200 Dallas, Texas 75201
Counsel who represented Intervenor Plaintiff Charla Aldous, PC in the
district court proceedings are:
Alan S. Loewinsohn Kerry F. Schonwald LOEWINSOHN FLEGLE DEARY LLP 12377 Merit Drive, Suite 900 Dallas, Texas 75251
Charla G. Aldous Brent R. Walker ALDOUS LAW FIRM 2311 Cedar Springs Road, Suite 2200 Dallas, Texas 75201
Counsel who represented Intervenor Plaintiff Thompson-Huffman Limited
Partnership in the district court proceedings are:
Jason Poe Lee H. Ayres S. Todd Parks AYRES WARREN SHELTON & WILLIAMS, L.L.C. 333 Texas Street, 14th Floor Shreveport, LA 71101
Case: 13-10939 Document: 00512516055 Page: 14 Date Filed: 01/29/2014
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Counsel who represented Respondent The Aldous Law Firm in the district
court proceedings are:
Alan S. Loewinsohn Kerry F. Schonwald LOEWINSOHN FLEGLE DEARY LLP 12377 Merit Drive, Suite 900 Dallas, Texas 75251
Charla G. Aldous Brent R. Walker ALDOUS LAW FIRM 2311 Cedar Springs Road, Suite 2200 Dallas, Texas 75201
Counsel who represented Respondent R. Dean Gresham in the district court
proceedings are:
Alan S. Loewinsohn Kerry F. Schonwald LOEWINSOHN FLEGLE DEARY LLP 12377 Merit Drive, Suite 900 Dallas, Texas 75251
R. Dean Gresham GRESHAM PC 2311 Cedar Springs Road, Suite 200 Dallas, Texas 75201
Counsel who represented Movant Ellen Flowers in the district court
proceedings are:
Ryan K. McComber A. Erin Dwyer FIGARI & DAVENPORT, L.L.P. 3400 Bank of America Plaza 901 Main Street, LB 125 Dallas, Texas 75202
Counsel who represented Movant Joyce Waller in the district court
proceedings are:
Michael P. Lynn Richard A. Smith LYNN TILLOTSON PINKER & COX LLP 2100 Ross Avenue, Suite 2700 Dallas, Texas 75201
Kent D. Krabill LYNN TILLOTSON & PINKER LLP 750 N. St. Paul Street, Suite 1400 Dallas, Texas 75201
Case: 13-10939 Document: 00512516055 Page: 15 Date Filed: 01/29/2014
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Robert H. Mow, Jr. Alison R. Ashmore Danny S. Ashby Jennifer B. Landry K&L GATES 1717 Main Street, Suite 2800 Dallas, Texas 75201
Counsel who represented Movant Michael V. Bourland in the district court
proceedings are:
David J. Goodman William R. Korb, Jr. Eric J. Millner BOURLAND WALL & WENZEL PC 301 Commerce Street, Suite 1500 Fort Worth, Texas 76102
Counsel who represented Movant Stewart H. Thomas in the district court
proceedings are:
C. Shawn Cleveland Emily C. McCall Matthew D. Orwig SNR DENTON US LLP 2000 McKinney Avenue, suite 1900 Dallas, Texas 75201
Counsel who represented Movant Tom M. Dees, III in the district court
proceedings are:
C. Shawn Cleveland Emily C. McCall Matthew D. Orwig SNR DENTON US LLP 2000 McKinney Avenue, suite 1900 Dallas, Texas 75201
Case: 13-10939 Document: 00512516055 Page: 16 Date Filed: 01/29/2014
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Counsel who represented Movant Shamoun & Norman, LLP in the district
court proceedings are:
Daniel D. Tostrud COBB MARTINEZ WOODWARD PLLC 1700 Pacific, Suite 3100 Dallas, Texas 75201
C. Gregory Shamoun Jonathan J. Cunningham Amanda M. Hoffmann SHAMOUN & NORMAN LLP 1775 Wittington Place Suite 200 LB 25 Dallas, Texas 75234
Angela M. Hough HERMES SARGENT BATES LLP 901 Main Street, Suite 5200 Dallas, Texas 75202
Counsel who represented Movant PBL Multi-Strategy Fund, L.P. in the
district court proceedings are:
Lawrence S. Fischman Troy David Phillips GLAST PHILLIPS & MURRAY PC 2001 Bryan Street, Suite 3900 Dallas, Texas 75201
The Guardian ad Litem in the district court proceedings is:
Michael K. Hurst Dena DeNooyer Stroh GRUBER HURST JOHANSEN & HAIL LLP 1445 Ross Avenue, Suite 2500 Dallas, Texas 75202
Case: 13-10939 Document: 00512516055 Page: 17 Date Filed: 01/29/2014
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Counsel who represented Interested Party Ron Cresswell in the district court
proceedings are:
William A. Barr Sara N. Copeland LOCKE LORD BISSELL & LIDDELL LLP 2200 Ross Avenue, Suite 2200 Dallas, Texas 75201
Counsel who represented Interested Party Locke Lord Bissell & Liddell LLP
in the district court proceedings are:
William A. Barr Sara N. Copeland LOCKE LORD BISSELL & LIDDELL LLP 2200 Ross Avenue, Suite 2200 Dallas, Texas 75201
Counsel who represented Interested Party XTO Energy Inc. in the district
court proceedings are:
Mitchell M. Murphy Jeffrey C. King WINSTEAD PC 777 Main Street, Suite 1100 Fort Worth, Texas 76102
Counsel who represented Interested Party Jonathan Nockels in the district
court proceedings are:
Alan S. Loewinsohn LOEWINSOHN FLEGLE DEARY LLP 12377 Merit Drive, Suite 900 Dallas, Texas 75251
Case: 13-10939 Document: 00512516055 Page: 18 Date Filed: 01/29/2014
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Counsel who represented Interested Party Brent Walker in the district court
proceedings are:
Alan S. Loewinsohn LOEWINSOHN FLEGLE DEARY LLP 12377 Merit Drive, Suite 900 Dallas, Texas 75251
Counsel who represented Interested Party David Evans in the district court
proceedings are:
Alan S. Loewinsohn LOEWINSOHN FLEGLE DEARY LLP 12377 Merit Drive, Suite 900 Dallas, Texas 75251
Counsel who represented Interested Party Gresham PC in the district court
proceedings are:
R. Dean Gresham GRESHAM PC 2311 Cedar Springs Road, Suite 200 Dallas, Texas 75201
Alan S. Loewinsohn Kerry F. Schonwald LOEWINSOHN FLEGLE DEARY LLP 12377 Merit Drive, Suite 900 Dallas, Texas 75251
Counsel who represented Receiver Daniel L. Jackson in the district court
proceedings are:
Talmage Boston WINSTEAD PC 5400 Renaissance Tower 1201 Elm Street Dallas, Texas 75270
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Counsel who represented Trustee Larry E. Jacobs in the district court
proceedings are:
Larry E. Jacobs BOYER JACOBS SHORT Nine Greenway Plaza, Suite 3100 Houston, Texas 77046
Counsel who represented Trustee Peggy Allison in the district court
proceedings are:
Carrie L. Huff HAYNES & BOONE LLP 2323 Victory Avenue, Suite 700 Dallas, Texas 75219
Counsel who represented Trustee Danny Bowlin in the district court
proceedings are:
Carrie L. Huff HAYNES & BOONE LLP 2323 Victory Avenue, Suite 700 Dallas, Texas 75219
Counsel who represented Trustee Chester Donnally in the district court
proceedings are:
Carrie L. Huff HAYNES & BOONE LLP 2323 Victory Avenue, Suite 700 Dallas, Texas 75219
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Counsel who represented Intervenor Campbell Harrison & Dagley LLP in
the district court proceedings are:
Robert W. Calloway Mary C. Burdette CALLOWAY NORRIS BURDETTE & WEBER 3811 Turtle Creek, Suite 400 Dallas, Texas 75219
Kenneth J. Fair Robin L. Harrison Suzanne E. Goss CAMPBELL HARRISON & DAGLEY LLP 4000 Two Houston Center 909 Fannin Street, Suite 4000 Houston, Texas 77010
Counsel who represented Intervenor Calloway, Norris, Burdette & Weber,
PLLC in the district court proceedings are:
Justin M. Campbell, III Kenneth J. Fair Robin L. Harrison Suzanne E. Goss CAMPBELL HARRISON & DAGLEY LLP 4000 Two Houston Center 909 Fannin Street, Suite 4000 Houston, Texas 77010
Robert W. Calloway Mary C. Burdette CALLOWAY NORRIS BURDETTE & WEBER 3811 Turtle Creek, Suite 400 Dallas, Texas 75219
Counsel who represented Counter Claimant Lyda Hill in the district court
proceedings are:
Frank N. Ikard, Jr. Laurie Ratliff Mary E. Haught IKARD GOLDEN PC 400 West 15th Street, Suite 975 Austin, Texas 78701
James D. Brown Michael P. Massad WINSTEAD PC 5400 Renaissance Tower 1201 Elm Street Dallas, Texas 75201
Russell A. Devenport MCDONALD SANDERS 777 Main Street, Suite 1300 Fort Worth, Texas 76102
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Counsel who represented Counter Defendant Albert G. Hill, III in the district
court proceedings are:
Mark E. Smith R. Wayne Gordon TOUCHSTONE BERNAYS JOHNSTON BEALL SMITH & STOLLENWERCK LLP 4040 Renaissance Tower 1201 Elm Street Dallas, Texas 75270
Alan Roy Struble ALSTON & BIRD LLP 2200 Ross Avenue, Suite 3600 Dallas, Texas 75201
Brent R. Walker Charla G. Aldous ALDOUS LAW FIRM 2311 Cedar Springs Road, Suite 2200 Dallas, Texas 75201
Dana B. Taschner DANA TASCHNER ATTORNEY AT LAW 2049 Century Park East, Suite 1940 Los Angeles, California 90067
David W. Evans LAW OFFICES OF DAVID EVANS 2811 Turtle Creek Boulevard Suite 1600 Dallas, Texas 75219
Dean D. Hunt Elizabeth A. Scully Matt R. Raley Michelle D. Pector BAKER & HOSTETLER 1000 Louisiana, Suite 2000 Houston, Texas 77002
Eugene R. Egdorf Evan M. Janush W. Mark Lanier THE LANIER LAW FIRM PC 6810 FM 1960 West Houston, Texas 77069
James S. Renard Melissa S. Yost Michael J. Collins William A. Brewer, III BICKEL & BREWER 1717 Main Street, Suite 4800 Dallas, Texas 75201
John C. Hueston Michael G. Ermer IRELL & MANELLA LLP 840 Newport Center Drive, Suite 400 Newport Beach, California 92660
Stephen F. Malouf Jonathan Andrew Nockels THE LAW OFFICES OF STEPHEN F. MALOUF PC 3811 Turtle Creek Boulevard
Case: 13-10939 Document: 00512516055 Page: 22 Date Filed: 01/29/2014
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Suite 1600 Dallas, Texas 75219
Justin M. Campbell, III Kenneth J. Fair Robin L. Harrison Suzanne E. Goss CAMPBELL HARRISON & DAGLEY LLP 4000 Two Houston Center 909 Fannin Street, Suite 4000 Houston, Texas 77010
Lisa A. Blue BARON & BLUE 5956 Sherry Lane, Suite 1616 Dallas, Texas 75225
Mark A. Cymrot BAKER & HOSTETLER LLP 1050 Connecticut Avenue NW Suite 1100 Washington, DC 20036
Marshall A. Camp IRELL & MANELLA LLP 1800 Avenue of the Stars, Suite 900 Los Angeles, California 90067
R. Dean Gresham GRESHAM PC 2311 Cedar Springs Road, Suite 200 Dallas, Texas 75201
Gregory S. Coleman Christian J. Ward Richard B. Farrer YETTER COLEMAN LLP 221 West Sixth Street, Suite 750 Austin, Texas 78701
Counsel who represented Counter Claimant Alinda H. Wikert, III in the
district court proceedings are:
Donald E. Godwin Bruce W. Bowman, Jr. Israel R. Silvas Jenny L. Martinez Robert J. McGuire W. Ira Bowman GODWIN PAPPAS & RONQUILLO PC 1201 Elm Street, Suite 1700 Dallas, Texas 75270
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Counsel who represented Counter Claimant Heather V. Washburne in the
district court proceedings are:
Stewart H. Thomas Tom M. Dees, III HALLETT & PERRIN PC 2001 Bryan Street, Suite 3900 Dallas, Texas 75201
Counsel who represented Counter Claimant Elisa M. Summers in the district
court proceedings are:
Stewart H. Thomas Tom M. Dees, III HALLETT & PERRIN PC 2001 Bryan Street, Suite 3900 Dallas, Texas 75201
/s/ Aarti K. Wilson Aarti K. Wilson
Case: 13-10939 Document: 00512516055 Page: 24 Date Filed: 01/29/2014
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STATEMENT REGARDING ORAL ARGUMENT
Appellant believes that oral argument will assist the Court in resolving this
case. The core issue in this appeal is straightforward: whether the district court
erred in ruling that successor trustees for a trust that was partitioned for
Appellants benefit in 2010 as part of the parties settlement in this action have no
right to obtain copies of the archives and permanent records of the original trust.
However, because the underlying litigation involved numerous parties and non-
party participants, was complex and protracted, and has generated a lengthy and
complicated record, oral argument will significantly benefit the Court in applying
the law on the complex record of this case.
Case: 13-10939 Document: 00512516055 Page: 25 Date Filed: 01/29/2014
TABLE OF CONTENTS
Page
2953072 - xxvi -
Certificate of Interested Persons ............................................................................ iii
Statement Regarding Oral Argument ................................................................. xxv
Statement of Jurisdiction ......................................................................................... 1
Statement of Issues for Review ............................................................................... 1
Introduction ............................................................................................................. 1
Statement of Facts and of the Case ......................................................................... 5
A. The Articles of Agreement of the Margaret Hunt Trust Estate ......... 5
B. The Underlying Litigation .................................................................. 6
C. The District Court Refuses to Order the Former Trustees to Provide the Archives and Permanent Records of the MHTE to the Successor Trustees ................................................................... 9
Standard of Review ............................................................................................... 13
Summary of the Argument .................................................................................... 13
Argument............................................................................................................... 14
I. The Successor Trustees of the Sub-Trusts Created From the MHTE Are Entitled to Copies of the Archives and Permanent Records of the MHTE. .................................................................................................. 14
A. The MHTEs Articles of Agreement Provide that a Successor Trustee Shall Have the Same Rights as the Prior Trustee. ............... 14
B. Texas Law Is Fully Consistent with the MHTEs Articles of Agreement with Respect to the Successor Trustees Rights. ........... 19
C. Hill III Presented Undisputed Evidence that the Successor Trustees Have a Legitimate Need to Access the Permanent Records of the MHTE. ..................................................................... 20
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D. The Prior Trustees Are Not Being Asked to Provide a Trust Accounting. ..................................................................................... 24
E. The Other Objections Raised by Appellees Lack Merit. ................. 27
II. At a Minimum, Judge Soliss July 30, 2013 Order Should Be Vacated or Remanded to the District Court, Because He Was Apparently Operating under an Undisclosed Conflict. ................................................. 29
Conclusion ............................................................................................................ 31
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TABLE OF AUTHORITIES
Page(s)
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CasesGoldin v. Bartholow,
166 F.3d 710 (5th Cir. 1999) ............................................................................... 13
Hill v. Schilling, 495 Fed. Appx. 480 (5th Cir. 2012) ................................................................... 10
Hoenig v. Texas Commerce Bank, N.A., 939 S.W.2d 656 (Tex. App. San Antonio 1996) .............................................. 23
Huie v. DeShazo, 922 S.W.2d 920 (Tex. 1996) ................................................................................ 28
In re Bradley, 501 F.3d 421 (5th Cir. 2007) ............................................................................... 28
Interfirst Bank-Houston, N.A. v. Quintana Petroleum Corp., 699 S.W.2d 864 (Tex. App. Houston [1st Dist.] 1985) .................................... 28
Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847 (1988) ............................................................................................. 30
Rohrbach v. AT&T Nassau Metals Corp., 915 F. Supp. 712 (M.D. Pa. 1996) ....................................................................... 31
Statutes28 U.S.C. 1291 ......................................................................................................... 1
28 U.S.C. 1441(a) .................................................................................................... 1
Tex. Prop. Code 112.054 ...................................................................................... 19
Tex. Prop. Code 112.057 ...................................................................................... 19
Tex. Prop. Code 113.084 ...................................................................................... 19
Tex. Prop. Code 113.151 ...................................................................................... 25
Tex. Prop. Code 113.152 ...................................................................................... 25
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RulesFed. R. Civ. P. 60(b) ................................................................................................ 11
Fed. R. Civ. P. 72 ..................................................................................................... 11
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STATEMENT OF JURISDICTION
Defendants-Appellees invoked the district courts jurisdiction pursuant to 28
U.S.C. 1441(a), which allows the removal of any civil action brought in a State
Court of which the district courts of the United States have original jurisdiction.
This Court has jurisdiction over this appeal pursuant to 28 U.S.C. 1291.
STATEMENT OF ISSUES FOR REVIEW
1. Whether the district court erred in ruling that the successor trustees of a 1935 trust that was partitioned in 2010 for Appellants benefit are not entitled to obtain copies of the archives and permanent records of the partitioned trust.
2. Whether the district courts order refusing to grant the successor trustees access to the permanent records of the trust should be vacated and remanded because the district court judge recused himself without explanation shortly after entering the order, and thus was apparently operating under a conflict of interest at the time he entered the ruling.
INTRODUCTION
The underlying litigation was a bitter intra-family dispute over an
inheritance exceeding $1 billion, a significant part of which was held in the
Margaret Hunt Trust Estate (the MHTE), a trust that had been established in
1935 by legendary oil tycoon H.L. Hunt. After nearly two-and-a-half years of
litigation, the parties entered into a written settlement agreement in May 2010,
which was implemented by the district court in a final judgment entered in
November 2010.
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Among other things, the final judgment divided the MHTE into several
separate and independent sub-trusts, including one such sub-trust for the benefit of
Appellant Albert G. Hill, III1 (the MHTE-Albert G. Hill III Trust, hereinafter the
MHTE-Hill III Trust), and another such sub-trust as to which Appellant is the
remainder beneficiary (the MHTE-Albert G. Hill, Jr. Income Beneficiary/Hill III
Termination Beneficiary Trust, hereinafter the Hill III Termination Trust). The
final judgment also appointed successor trustees to administer each of the various
sub-trusts.
The sub-trusts, with three limited exceptions described in the final judgment,
continue to be governed by the original 1935 Articles of Agreement and
Declaration of Trust that established the MHTE, and are expressly continuations of
the original 1935 trust.
The MHTEs Articles of Agreement provide that a successor trustee inherits
all of the rights and responsibilities of the former trustee. Among the rights and
responsibilities of the trustee are the duties to keep accurate records and books of
account regarding the trust, and to maintain the archives and permanent records
of the trust. (ROA.17765) (Record Excerpts (RE) Tab 5).
1 Appellant is referred to herein as Hill III. Hill III is sometimes referred to in materials filed in the district court proceedings as Al III. Likewise, Hill IIIs father, Albert G. Hill, Jr., is referred to herein as Hill Jr., but is sometimes referred to in materials filed in the district court as Al Jr.
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After the MHTE was partitioned as required by the final judgment in 2010,
the successor trustees of the MHTE-Hill III Trust and the Hill III Termination
Trust requested that Appellees make the books and records of the MHTE available
for copying by the successor trustees. Appellees refused, contending that the
successor trustees for the sub-trusts affiliated with Hill III have no right to obtain
copies of the archives and permanent records of the MHTE.
With the support of the successor trustees, Hill III thereafter moved the
district court for an order compelling Appellees to either make the books and
records of the MHTE available for copying by the successor trustees, or to make
the records available for copying by Hill III personally. The district court denied
that motion, reasoning that (1) nothing in the final judgment or in the MHTEs
Articles of Agreement specifically requires that the former trustee of the MHTE
provide copies of the trusts books and records to a successor trustee, and (2) Hill
III had agreed in the parties settlement agreement that the former trustees would
not be required to furnish any trust accounting in connection with the settlement,
and thus Hill III was precluded from obtaining the books and records of the trust.
As explained more fully below, the district courts ruling on Hill IIIs
motion is erroneous. Under the terms of the Articles of Agreement and under
Texas law, a successor trustee inherits all of the same rights, powers, duties, and
obligations of his or her predecessor. In this case, such rights necessarily include
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reasonable access to the archives and permanent records of the trust materials
that the Articles of Agreement clearly state belong to the trust, and not to the
trustee personally. Moreover, neither Hill III nor the successor trustees have
requested that the prior trustees provide an accounting the successor trustees
have simply requested copies of the permanent records of the trust, which is
entirely different than requesting that the prior trustee prepare a trust accounting.
Further, there is no support whatsoever for the district courts implicit ruling that
successor trustees for some of the sub-trusts created from the MHTE are entitled to
complete copies of the books and records of the original trust, but successor
trustees for other sub-trusts (i.e., those affiliated with Hill III) are not entitled to
those same materials.
For all of these reasons, and as discussed more fully below, the district court
erred in denying Hill IIIs motion to compel Appellees to produce copies of the
MHTEs books and records to the successor trustees.
In the alternative, this Court should vacate the order at issue and remand Hill
IIIs motion for consideration by the new district court judge assigned to hear this
action based upon the fact that the district court judge who decided the motion that
gives rise to this appeal recused himself, without explanation, shortly after entering
the order that is being appealed from, and was thus apparently operating under a
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conflict of interest at the time the order at issue which is intemperate and
disparaging of Hill III was entered.
STATEMENT OF FACTS AND OF THE CASE
A. The Articles of Agreement of the Margaret Hunt Trust Estate
In 1935, oil tycoon H.L. Hunt, then reportedly the wealthiest man in the
United States, established irrevocable trusts for six of his children, including
Margaret Hunt Hill (Margaret, the original beneficiary of the Margaret Hunt
Trust Estate (MHTE)) and Hassie Lafayette Hunt Jr. (the original beneficiary of
the Haroldson Hunt Trust Estate (HHTE)).
The Articles of Agreement and Declaration of Trust establishing each of the
MHTE and HHTE were substantively identical and set forth guidelines for the
administration of the trusts. The Articles of Agreement of the MHTE establish the
duties of the trustee. Among other things, the trustee is required to
keep, or cause to be kept, faithful records and books of account, reflecting at all times the true conditions of the affairs of said Trust Estate, which said records and books of account shall at all times be open for the inspection of the other two members of the Advisory Board, and as near after the close of each calendar year as is reasonably possible the Trustee shall have said books and records audited by a Certified Public Accountant and a report of said audit filed as a part of the archives and permanent records of said Trust Estate . . . . (ROA.17765) (emphasis added) (RE Tab 5).
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The Articles of Agreement further provide that when the trustee is replaced,
the successor trustee shall succeed to the same rights and powers and be subject to
the same duties and liabilities as his predecessor, with such rights vesting
immediately upon being elected as successor trustee. (ROA.17761) (RE Tab 5).
B. The Underlying Litigation
The factual background of this litigation has been summarized at length for
this Court in connection with Hill IIIs original appeal from the final judgment.
See Hill v. Schilling, Case No. 11-10348, Appellants Br. at 3-15 (5th Cir., filed
Oct. 17, 2011). In brief: In 2005, Hill IIIs father, Albert G. Hill, Jr. (Hill Jr.),
signed an irrevocable disclaimer of a portion of his interest in the MHTE in favor
of his children. When Margaret died in 2007, Hill Jr.s interest in the MHTE
vested and, by virtue of the disclaimer Hill Jr. had signed in 2005, Hill Jr.s
children (including Hill III) became vested, current beneficiaries of the MHTE.
Apparently hoping to avoid certain tax consequences that would result from
the 2005 disclaimer, shortly after Margarets death in 2007, Hill Jr. executed an
updated but substantially similar disclaimer in favor of his children (including Hill
III). Soon thereafter, however, Hill Jr. took the position that the disclaimer he had
signed in 2005 was invalid based on the contention that Hill Jr. had purportedly
been incompetent when he signed it. (See ROA.10746). Hill Jr. also took the
position that his 2007 disclaimer had been signed in 2005, at a time when he was
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purportedly incompetent. (See ROA.10748). In late 2007, Hill Jr. filed pleadings
in state court in Texas seeking to establish that the disclaimers he had signed were
invalid, and that Hill III was therefore not a beneficiary of the MHTE.
(ROA.11587-94).
In response, on November 8, 2007, Hill III filed a suit in the 14th Judicial
District of Dallas County, alleging that his father and others had committed
violations of the federal Racketeer Influenced and Corrupt Organizations Act
(RICO), fraud, breach of fiduciary duty, and other torts in connection with the
MHTE and the HHTE. (ROA.186-231). Hill IIIs lawsuit, which the Defendants
removed to the United States District Court for the Northern District of Texas on
December 3, 2007, sought various forms of relief, including a declaration that Hill
III was a beneficiary of both the MHTE and the HHTE. (ROA.155-61, 229-30).
After nearly two and a half years of litigation, the parties entered into a
written Global Settlement and Mutual Release Agreement (the GSA or
Settlement Agreement) that was filed with the district court in May 2010.
(ROA.Sealed, Dkt.879). Among the agreed-upon settlement terms was that the
MHTE would be divided pro rata into separate sub-trusts for each of the current
beneficiaries, including Hill III. (ROA.Sealed, Dkt.879 at 7, 17) (RE Tab 10). The
parties agreed that each sub-trust would be separately administered by new
successor trustees in accordance with the 1935 Articles of Agreement of the
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MHTE. (ROA.Sealed, Dkt.879 at 17, 23) (RE Tab 10). The parties also agreed
that the outgoing trustees of the MHTE would be released for failure to furnish
any trust accounting for either of the MHTE or the HHTE, for time periods before
and including the resignation dates of the trustees and advisory board members.
(ROA.Sealed, Dkt. 879 at 24-25) (RE Tab 10).
On November 8, 2010, after the parties had submitted lengthy briefing
concerning implementation of the Settlement Agreement, the district court entered
its final judgment (the Final Judgment) that purported to implement the
Settlement Agreement. As required by the Settlement Agreement, the Final
Judgment divided the MHTE into several sub-trusts as of the date of Margarets
death (June 14, 2007), and appointed successor trustees to oversee each of the
sub-trusts. (ROA.Sealed, Dkt.999 at 7-20). One such sub-trust was created for the
benefit of Hill III (the MHTE-Hill III Trust) and another such sub-trust was created
as to which Hill III is the remainder beneficiary (Hill III Termination Trust).
(ROA.Sealed, Dkt.999 at 7-8, 12-14, 20) (RE Tab 9).
The Final Judgment provides that, with three minor modifications that are
not relevant to this appeal, each of the sub-trusts created from the MHTE shall be
governed by the terms and provisions of the [1935] Articles of Agreement and
Declarations of Trust establishing the MHTE . . . . (ROA.Sealed, Dkt.999 at 2,
24-25) (RE Tab 9).
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C. The District Court Refuses to Order the Former Trustees to Provide the Archives and Permanent Records of the MHTE to the Successor Trustees
Due to the passage of time between the parties settlement in May 2010 and
the district courts entry of the Final Judgment in November 2010, shortly after the
Final Judgment was entered, Hill III filed a motion requesting that the district court
alter or amend the Final Judgment to require the former trustees of the MHTE to
provide him with a trust accounting for the period between May and November
2010. (ROA.Sealed, Dkt.1050 at 14-15). The district court rejected that request,
citing the provision of the Settlement Agreement which states that the former
trustees are released for any failure to furnish any trust accounting for either the
MHTE or the HHTE. (ROA.Sealed, Dkt.1099 at 11 (RE Tab 8); see also
ROA.Sealed, Dkt.879 at 24-25 (RE Tab 10)).
Hill III then filed an appeal to this Court relating to certain provisions of the
Final Judgment that deviated from the parties Settlement Agreement. (See
ROA.17486-87; Hill v. Hunt, et al., 5th Cir. Case No. 11-10348). While that
appeal was pending, Hill III learned that the district court judge who had been
presiding over the action since 2007 (the Honorable Reed OConnor) apparently
had an undisclosed conflict of interest both at the time the Settlement Agreement
had been signed and when the Final Judgment had been entered. In March 2012,
Hill III unsuccessfully moved to recuse Judge OConnor, and then appealed the
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denial of his motion to recuse to this Court. (ROA.Sealed, Dkt. 1257, ROA.17829-
83; Hill v. Hunt, et al., 5th Cir. Case No. 12-10620). Hill IIIs two appeals were
consolidated,2 and this Court ultimately ruled against Hill III. Hill v. Schilling, 495
Fed. Appx. 480, 483 (5th Cir. 2012). Soon after the mandate issued, however,
Judge OConnor abruptly recused himself without explanation and was eventually
replaced by the Honorable Jorge A. Solis. (ROA.149, 18112-13).
Meanwhile, in December 2010, the MHTE had been divided into sub-trusts
as required by the parties Settlement Agreement and the Final Judgment.
(ROA.Sealed, Dkt. 1053). After the division took place, the successor trustees of
the MHTE-Hill III Trust and the Hill III Termination Trust requested that the
predecessor trustees of the MHTE provide the successor trustees with copies of (or
access to) the books and records of the MHTE. (ROA.17786-99). Those requests
were rejected. (ROA.17788, 17794-95) (RE Tab 7). Accordingly, on March 5,
2012, Hill III filed a motion to compel the former trustees of the MHTE to make
the books and records of the trust available either to the successor trustees or to
Hill III personally, which motion was supported by declarations submitted by the
2 Hill III also filed a separate appeal in a related case (Campbell, Harrison & Dagley, et al. v. Hill, et al., 5th Cir. Case No. 12-10417), which appeal was also consolidated with his two appeals in this action. See Hill v. Hunt, et al., 5th Cir. Case No. 11-10348, Order (entered July 25, 2012).
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successor trustees.3 (ROA.17738-99). Hill IIIs motion to compel was joined by
the guardian-ad-litem who had been appointed by the district court to represent the
interests of Hill IIIs minor children. (ROA.Sealed, Dkt. 1281 at 2-4).
The magistrate judge who was assigned by the district court to consider Hill
IIIs motion to compel found that it is common practice for trustees to willingly
provide the trusts books and records to successor trustees in the usual
circumstances, and that [i]n all likelihood, the drafters of the MHTE trust
agreement contemplated that such books and records would naturally be given to
any successor trustees. (ROA.17980-81) (RE Tab 4). Nonetheless, the magistrate
entered an order on January 15, 2013 denying Hill IIIs motion. (ROA.17982) (RE
Tab 4).
Thereafter, Hill III timely filed objections pursuant to Federal Rule of Civil
Procedure 72 seeking review of the magistrate judges ruling by the district court.4
(ROA.Sealed, Dkt.1343). On July 30, 2013, Judge Solis entered his first and only
substantive order in the action, overruling all of Hill IIIs objections to the
3 The Final Judgment appointed Hill III as an Advisory Board member of the MHTE-Hill III Trust. (ROA.Sealed, Dkt.999 at 20) (RE Tab 9). Hill III therefore had standing to bring the motion to compel in his own right, as the MHTEs Articles of Agreement provide that Advisory Board members have unfettered access to the records of the trust. (ROA.17765) (RE Tab 5). 4 A party is entitled to have the district court review a magistrate judges ruling pursuant to Rule 72. Here, however, the magistrate judges ruling at issue was entered after the Final Judgment. Accordingly, Hill III objected to the magistrates ruling both under Rule 72 and under Federal Rule of Civil Procedure 60(b).
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magistrates order. (ROA.18175-85) (RE Tab 3). The district court ruled that
[t]he MHTE Articles of Agreement do not provide successor trustees an absolute
right to inspect, view, see, peek at, peruse, skim, scan, gaze upon, or otherwise
examine an outgoing trustees books and records. (ROA.18181) (RE Tab 3).
Likewise, the district court ruled that the MHTE Articles of Agreement contain no
express provision which directs an outgoing trustee to confer even a single book,
record, or leaf of paper to any successor trustee. (ROA.18180) (RE Tab 3). The
district court further reasoned that even assuming the former trustees might
otherwise have had an obligation to turn over the books and records to a successor
trustee, the provision of the Settlement Agreement that released the former trustees
from providing a trust accounting effectively obviated any such requirement.
(ROA.18180-81) (RE Tab 3).
Hill III timely filed notice of this appeal from the district courts order
denying his motion to compel. (ROA.18186-87) (RE Tab 2). Approximately one
month following Hill IIIs notice of appeal, Judge Solis recused himself from the
underlying litigation without providing the parties with any explanation for his
decision to recuse. (ROA.18192).
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STANDARD OF REVIEW
The primary issue presented on this appeal is whether the district court
properly interpreted the MHTEs Articles of Agreement with respect to the
successor trustees rights to obtain copies of the archives and permanent records
of the trust. A trust instrument is interpreted as a contract, and like the
interpretation of a contract the construction of a trust instrument is a question of
law. Therefore, the interpretation of a trust instrument is reviewed de novo.
Goldin v. Bartholow, 166 F.3d 710, 715 (5th Cir. 1999).Accordingly, the
appropriate standard of review with respect to Hill IIIs appeal from the district
courts July 30, 2013 order is de novo.
SUMMARY OF THE ARGUMENT
This appeal raises a straightforward issue of law: Do the successor trustees
of the sub-trusts created from the MHTE pursuant to the parties Settlement
Agreement and the Final Judgment have a right to obtain copies of the archives
and permanent records of the MHTE? As a matter of logic and plain English, the
answer to that question is clearly yes. Moreover, there is no justification
whatsoever for the district courts implicit ruling that successor trustees for certain
of the sub-trusts that were created from the MHTE are entitled to complete copies
of the books and records of the MHTE, but that successor trustees for other sub-
trusts created from the MHTE (i.e., those sub-trusts of which Appellant is a
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beneficiary) are not entitled to those same records. Simply put, the district courts
ruling was erroneous as a matter of law, and should be reversed.
In the alternative, this Court should vacate the order at issue and remand Hill
IIIs motion for consideration by the new district court judge assigned to hear this
action because the district judge who decided the motion that gives rise to this
appeal was apparently operating under a conflict of interest when the order at issue
was entered. That judge recused himself, without explanation, shortly after
entering the order that is being appealed from, and the order itself is replete with
statements that are disparaging of Appellant.
ARGUMENT
I. The Successor Trustees of the Sub-Trusts Created From the MHTE Are Entitled to Copies of the Archives and Permanent Records of the MHTE.
A. The MHTEs Articles of Agreement Provide that a Successor Trustee Shall Have the Same Rights as the Prior Trustee.
The May 2010 Settlement Agreement and November 2010 Final Judgment
in this action required that the MHTE be divided into separate sub-trusts for the
benefit of the then-existing beneficiaries of the trust. (See ROA.Sealed, Dkt.879 at
17; ROA.Sealed, Dkt.999 at 7-20). In connection with that division, the assets of
the MHTE were required to be divided pro rata between the sub-trusts according to
the proportional interests of the beneficiaries. (ROA.Sealed, Dkt.879 at 17;
ROA.Sealed, Dkt.999 at 7-20). The Final Judgment further required that the sub-
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trusts would continue to be governed by the MHTEs original Articles of
Agreement, with three very limited (and irrelevant, for purposes of this appeal)
exceptions. (ROA.Sealed, Dkt.999 at 24-25) (RE Tab 9). In other words, the
parties Settlement Agreement and the Final Judgment provide that the sub-trusts
are simply continuations of the MHTE, and will be treated for tax and other
reasons as though the original 1935 trust had remained intact and undisturbed.
(ROA.Sealed, Dkt.879 at 23-24 (RE Tab 10); ROA.Sealed, Dkt.999 at 7-8 (RE
Tab 9).
The MHTEs Articles of Agreement require the trustee to maintain archives
and permanent records of the trust, which records and books of account shall at
all times be open for the inspection of the other two members of the Advisory
Board.5 (ROA.17765) (RE Tab 5). The Articles of Agreement further provide
that the trustee shall continue to serve until replaced by a successor trustee, and
that immediately upon election, the successor trustee shall step into the shoes of
the prior trustee with respect to all rights and duties, including duties relating to the
administration of the books and records of the trust. (ROA.17761 (Article I,
Section 2 noting that his successor shall succeed to the same rights and powers
and be subject to the same duties . . . as his predecessor.)) (RE Tab 5).
5 The Articles of Agreement provide that the MHTE shall have a three-member Advisory Board, consisting of the Trustee and two other members. (ROA.17765) (RE Tab 5).
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Notwithstanding the clear and unambiguous language cited above, the
district court ruled that the successor trustees of the two MHTE sub-trusts for
which Hill III is either a current or future beneficiary are not entitled to obtain
copies of the archives and permanent records of the MHTE from the predecessor
trustees. The district court reasoned that (a) the MHTEs Articles of Agreement do
not specifically mention a former trustee delivering the records of the trust to a
successor trustee, and (b) the successor trustees duty with respect to trust records
is purportedly limited to maintaining permanent records henceforth i.e.,
commencing after the successor trustee is appointed. (ROA.17980-81, 18180) (RE
Tabs 3 & 4).
Respectfully, the district courts ruling is flatly inconsistent with the Articles
of Agreement, Texas law, and common sense. As noted above, the Articles of
Agreement require the trustee to maintain archives and permanent records of the
trust. (ROA.17765) (RE Tab 5). The terms archives6 and permanent7 are
6 For example, the Merriam-Webster Dictionary defines an archive as a place in which public records or historical materials (such as documents) are kept. Merriam Webster Dictionary, http://www.merriam-webster.com/dictionary/archive (emphasis added). Likewise, the American Heritage Dictionary defines an archive as [a] place or collection containing records, documents, or other materials of historical interest. http://ahdictionary.com/word/search.html?q=archive. Similarly, the Oxford Dictionary defines archive as a collection of historical documents or records providing information about a place, institution, or group of people. Oxford Dictionaries, http://www.oxforddictionaries.com/us/definition/english/archive?q=archive.
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commonly used words with well-established definitions. Applying those well-
established definitions, the plain language of the Articles of Agreement requires
the acting trustee which would include any successor trustee to maintain
permanent, historical records of the trust, which records must at all times be open
for the inspection of the trusts three-member Advisory Board. (ROA.17765) (RE
Tab 5). The successor trustees duty to maintain and make available for inspection
the archives and permanent records commences immediately upon the
successor trustee being elected. (ROA.17761) (RE Tab 5).
The Articles of Agreement are equally clear that the archives and
permanent records belong to the trust, not to the trustee. Indeed, that is expressly
what Article I, Section 10 of the Articles of Agreement provides when it requires
the acting trustee to have the books and records of the trust audited annually, and
have the report or said audit filed as part of the archives and permanent records of
said Trust Estate. (ROA.17765) (RE Tab 5).
7 The Merriam Webster Dictionary defines permanent as lasting or continuing for a very long time or forever; not temporary or changing. Merriam Webster Dictionary, http://www.merriam-webster.com/dictionary/permanent. The American Heritage Dictionary defines permanent as [l]asting or remaining without essential change. American Heritage Dictionary, http://ahdictionary.com/ word/search.html?q=permanent. The Oxford Dictionary defines permanent as lasting or intended to last or remain unchanged indefinitely. Oxford Dictionaries, http://www.oxforddictionaries.com/us/definition/english/permanent?q=permanent.
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Nothing in the Articles of Agreement suggests, or could be read to imply,
that when a successor trustee is elected, the archives and permanent records of
the trust shall be abandoned, and that the successor trustee shall only maintain
records henceforth. Indeed, the term henceforth does not appear anywhere in
the relevant provisions of the Articles of Agreement the district court simply
inserted this limitation of its own accord. (ROA.17980-81, 18180) (RE Tabs 3 &
4).
Equally importantly, nothing in the Articles of Agreement or in the parties
Settlement Agreement supports the conclusion that successor trustees for certain of
the sub-trusts created from the MHTE shall have access to the permanent records
of the trust, but that successor trustees for other sub-trusts shall be denied access.
But that is exactly the unwarranted and unprecedented dichotomy that the district
court created by ruling that the successor trustees for the two sub-trusts of which
Hill III is a current or remainder beneficiary are not entitled to copies of the
MHTEs records since it is undisputed that successor trustees for other sub-trusts
created under the Final Judgment do have those very materials. (ROA.Sealed,
Dkt.1359 at 7; see also ROA.Sealed, Dkt.1288 at 8 n.6). Both the trust agreement
itself and basic fairness dictate that the successor trustees for the sub-trusts
affiliated with Hill III must be given the same access to the records of the trust as
the successor trustees for the other sub-trusts created from the MHTE.
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B. Texas Law Is Fully Consistent with the MHTEs Articles of Agreement with Respect to the Successor Trustees Rights.
The conclusion that a successor trustee is entitled to copies of the historical
records of the MHTE is not only clear from the Articles of Agreement, but is also
amply supported by the Texas laws that the district court relied upon in creating
the sub-trusts. (See ROA.Sealed, Dkt.999 at 7) (RE Tab 9). For example, Texas
Property Code section 112.057 permits a trustee to divide a trust only if the terms
of the separate trusts [are] identical to the terms of the original trust. Likewise,
Texas Property Code section 112.054 permits a judicial modification of an
existing trust provided that it conforms as nearly as possible to the probable
intention of the settlor. Consistent with these statutory provisions, the Final
Judgment makes clear that the sub-trusts are simply proportionate divisions of the
existing trust estate governed, with very limited exceptions, by the original 1935
Articles of Agreement. (See ROA.Sealed, Dkt.999 at 7-20, 24-25). In other
words, the sub-trusts constitute a continuation, not a termination, of the MHTE.
Moreover, as with the Articles of Agreement, the Texas Property Code
provides that a successor trustee has the same rights, powers, authority, discretion,
and title to trust property as was conferred on the prior trustee. Tex. Prop. Code
113.084. Simply put, under Texas law, a successor trustee steps into the shoes of
the former trustee. Thus, if the former trustee had access to the archives and
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permanent records of the MHTE, the successor trustee must have the same right to
access those archives and permanent records.
The district court faulted Hill III for failing to cite any Texas case in which a
predecessor trustee was ordered to turn over the books and records of the trust to a
successor trustee. (ROA.18182) (RE Tab 3). However, it is unsurprising that Hill
III was unable to locate any such case given that, as the magistrate judge
acknowledged, the turnover of the trusts records to the successor trustee would be
expected to happen as a matter of course. (ROA.17980) (RE Tab 4). Hill III
respectfully submits that it is far more significant that there is no Texas authority
that supports the district courts troubling conclusions that (a) a prior trustee has no
obligation to provide the trusts books and records to a successor trustee, and (b)
when a trust is divided into separate sub-trusts, successor trustees for some sub-
trusts but not others are entitled to copies of the trusts records. Given the lack of
any Texas state court cases supporting the obviously flawed conclusions reached
by the district court, this Court would be setting a perilous and unfortunate
precedent if it were to affirm the district courts ruling.
C. Hill III Presented Undisputed Evidence that the Successor Trustees Have a Legitimate Need to Access the Permanent Records of the MHTE.
As discussed above, the plain language of the MHTEs Articles of
Agreement require the trustee (including a successor trustee) to maintain historical
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records of the trust. This requirement makes perfect sense. The MHTE was
established in 1935 and was written to continue until the Death of Margaret
Hunt . . . and for twenty-one years after . . . her death that is, the trust was
intended to last (and has lasted) for decades. (ROA.17767-68) (RE Tab 5).
Maintaining permanent trust records throughout the life of the trust would
therefore be important, if not essential, to simply by way of example establish
the trusts tax basis in property acquired over time, and to keep track of the trusts
various different investments and their performance.8
Nothing in either the Articles of Agreement, the Final Judgment, or Texas
law requires the successor trustees, or Hill III personally, to make any showing of
need in order for the successor trustees to obtain access to the records of the
MHTE. Nonetheless, Hill III and the successor trustees presented largely
uncontested evidence to the district court that the successor trustees ability to
effectively administer the sub-trusts is being hampered by their lack of access to
the permanent records of the MHTE. (ROA.17786-99). For example, the
successor trustees testified by declaration that they would not be able to
definitively ascertain the tax basis for a significant portion of the assets of the sub- 8 The magistrate judge who initially denied Hill IIIs original motion acknowledged that the original intent of the drafter of MHTEs Articles of Agreement was likely to provide copies of the books and records to the successor trustee. (ROA.17980 (In all likelihood, the drafters of the MHTE trust agreement contemplated that such records and books would naturally be given to any successor trustees.)) (RE Tab 4).
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trusts at issue namely, the MHTEs ownership of Exxon Mobil securities
without access to the MHTEs historical books and records.9 (ROA.17788, 17795)
(RE Tab 7).
Separately and additionally, Hill III submitted evidence showing that having
access to the permanent records of the trust was critical in order for the successor
trustees, and for Hill III personally, to ascertain whether the sub-trusts had been
correctly funded as required by the Settlement Agreement and Final Judgment. In
this regard, Hill III offered uncontested evidence that in connection with dividing
certain illiquid assets among the sub-trusts as required by the Final Judgment, the
former trustees had failed to disclose certain assets that Hill III had subsequently
managed to locate himself by reference to secondary sources such as public
records. (ROA.17756) (RE Tab 6). Confronted with the secondary evidence
unearthed by Hill III, the former trustees later admitted that certain of the
information they had provided about the assets that were being divided among the
9 The district court found that the successor trustees concerns on this point are unfounded because the prior trustees had produced a single document, prepared by a non-party, purporting to state the MHTEs tax basis in the Exxon securities. (ROA.18181) (RE Tab 3). However, the successor trustees were aware of the document referenced by the district court when they testified that additional information was needed in order to definitively ascertain the tax basis of assets valued in the tens of millions of dollars. (ROA.17790, 17797). Accordingly, the district courts finding on this issue was not supported by the record, and is clearly erroneous.
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sub-trusts had been inaccurate. (ROA.Sealed, Dkt.1207 at 2, 4-8; ROA.Sealed,
Dkt.1215 at 2, 4-8).
Simply put, access to the archives and permanent records of the MHTE is
important, and likely essential, in order for the successor trustees to properly carry
out their obligations with respect to the sub-trusts. (ROA.17786-88, 17794-95)
(RE Tab 7). In this regard, the case of Hoenig v. Texas Commerce Bank, N.A. is
instructive. 939 S.W.2d 656 (Tex. App. San Antonio 1996, no writ). In that
case, a successor trustee obtained the records of the trust from the outgoing trustee,
and subsequently determined from those records that the prior trustee had
negligently failed to collect rents for more than ten years on properties owned by
the trust. Id. at 658-59. Ironically, the former trustee then contended that the
successor trustee should be held jointly liable to the beneficiary on the theory that
the successor trustee should have immediately spotted the error. The court rejected
this theory for various reasons, including that the successor trustee had promptly
spotted and taken steps to address the issue. Id. at 662-63. Hoenig is illustrative
both of the fact that a successor trustee necessarily has access to the records of the
trust, and also of the reasons why a successor trustees access to trust records is
vitally important.
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In short, here the record more than amply shows that the successor trustees
of the sub-trusts created from the MHTE have a legitimate need for access to the
permanent records of the trust.
D. The Prior Trustees Are Not Being Asked to Provide a Trust Accounting.
In its order denying Hill IIIs motion to compel, the district court reasoned
that even if the successor trustees would otherwise be entitled to the records of the
MHTE, here Hill III has supposedly waived any right to obtain those records
because he agreed in the Settlement Agreement to release the prior trustees for any
claim relating to failure to furnish any trust accounting for either of the MHTE or
the HHTE, for time periods before and including the resignation dates of the
trustees and advisory board members. (ROA.18182 (citing ROA.Sealed, Dkt.999
at 26); ROA.Sealed, Dkt.879 at 25 (emphasis added)) (RE Tabs 3, 9 & 10).
The issue before the district court on Hill IIIs motion to compel, and the
issue before the Court on this appeal, is not whether the former trustees should be
required to provide a trust accounting, since neither Hill III nor the successor
trustees are seeking a trust accounting. Rather, the issue before this Court is
whether the successor trustees should be permitted to copy the archives and
permanent records of the MHTE.
A trust accounting is defined under the Texas Property Code as a specific
written statement of accounts encompassing five distinct categories of
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information, which must be generated and delivered by a trustee in response to a
beneficiarys demand. See Tex. Prop. Code 113.151, 113.152. Thus, a
beneficiarys right to a trust accounting is defined by law, and is entirely distinct
from a successor trustees right under the MHTEs Articles of Agreement to obtain
the existing archives and permanent records of the trust. In this regard, the
portion of the Settlement Agreement cited by the district court does not state or
imply that the successor trustee is somehow precluded from obtaining the existing
records of the trust, nor was such a result ever intended by the parties.10
In concluding that Hill IIIs motion to compel was foreclosed by the
Settlement Agreement, Judge Solis also incorrectly concluded that Judge
OConnors March 4, 2011 order denying Hill IIIs motion to alter or amend the
Final Judgment (ROA.Sealed, Dkt.1099 at 11 (RE Tab 8)) otherwise provided . . .
by order of the court that the successor trustees should not be permitted to access,
inspect, and copy the MHTE books and records. (ROA.18182-82) (RE Tab 3).
This conclusion wholly misconstrues the prior order.
10 At a May 12, 2010 conference concerning the Settlement Agreement, Frank Ikard, then-counsel for Appellee Lyda Hill, discussed the provision of the Settlement Agreement cited by the district court, explaining that [t]his is standard language to get a successor corporate trustee, you have to have an agreement because a successor trustee has to go back and investigate everything that a prior trustee did and so no one is going to serve as a successor trustee with all these allegations unless this language is in the instrument. (ROA.Sealed, Dkt.1267-1 at 223-24).
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As discussed above, soon after the Final Judgment was entered in November
2010, Hill III filed a motion to alter or amend the judgment in which he argued that
due to the passage of time between the Settlement Agreement and the Final
Judgment, the district court should order that Hill III, as a beneficiary of the
MHTE, had a right to a complete, updated accounting and right of inspection as to
the MHTE. (ROA.Sealed, Dkt.1050 at 14). The district court denied Hill IIIs
motion to alter or amend, finding that there was no basis to add a provision to the
Final Judgment entitling Hill III to an updated accounting in light of the language
in the Settlement Agreement providing that the former trustees were absolved from
liability for failure to furnish any trust accounting. (ROA.Sealed, Dkt.1099 at
11) (RE Tab 8).
Whether or not the district courts ruling on Hill IIIs motion to alter or
amend was correct, that ruling involved a totally separate issue than the one
presented here. Specifically, the motion to alter or amend raised the issue of
whether Hill III, in his capacity as a beneficiary, was entitled to an updated
accounting because of the passage of approximately six months between the
settlement and the entry of judgment. By contrast, the issue raised here is whether
the successor trustees are entitled to copies of the archives and permanent
records of the trust.
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In concluding that Judge OConnors prior order had addressed this issue,
Judge Solis incorrectly treated the successor trustees as if they are merely agents of
Hill III. They are not. To the contrary, a trustee is the owner of the legal title to
the trust corpus and the administrator of the trust, with a set of established rights
and obligations that are separate and distinct from the rights and obligations of the
beneficiary. (See ROA.17761-67) (RE Tab 5). Accordingly, the fact that the prior
district court judge found that Hill III was not entitled to a post-settlement
accounting in his role as a beneficiary is not relevant to the question of whether the
successor trustees are entitled to copies of the archives and permanent records of
the trust.
E. The Other Objections Raised by Appellees Lack Merit.
In their briefing before the district court, Appellees raised various additional
objections to Hill IIIs motion to compel the MHTEs records to be produced to the
successor trustees. None of those objections is meritorious. For example, the
former trustees objected that they should not be required to transfer the trusts
records to the successor trustees. However, Hill IIIs motion did not seek to
compel the transfer of the records rather, it sought merely to obtain copies of
the records for the successor trustees, and the successor trustees offered to pay for
those copies. (ROA.17743-44).
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The former trustees also argued that Hill III has already received voluminous
document productions during the course of the underlying litigation, and that those
records should be deemed sufficient. (ROA.Sealed, Dkt.1266 at 12-13). However,
the former trustees offered no evidence supporting the conclusion that the trust
records produced to Hill III during the litigation constitute the complete archives
and permanent records of the MHTE. The fact that some trust records were
previously produced to Hill III is irrelevant.
The former trustees likewise argued to the district court that production of
the MHTEs books and records would require substantial time and expense,
including a privilege review and withholding of particular documents based on a
discovery agreement with a third party. (ROA.Sealed, Dkt.1350 at 12 n.6). These
arguments are specious. As noted above, the successor trustees offered to pay for
making copies of the trust records, so the prior trustees faced no copying expenses
whatsoever. (ROA.Sealed, Dkt.1343 at 8-9 n.6; ROA.17790 (RE Tab 7)).
Moreover, there is no legitimate need for the prior trustees to conduct a privilege
review with respect to the archives and permanent records of the trust, since the
successor trustees are in legal privity with the former trustee. See In re Bradley,
501 F.3d 421, 433 (5th Cir. 2007) (citing Huie v. DeShazo, 922 S.W.2d 920, 926
(Tex. 1996) (an attorney represents the trustee in his capacity as trustee)); see
also Interfirst Bank-Houston, N.A. v. Quintana Petroleum Corp., 699 S.W.2d 864,
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879 (Tex. App. Houston [1st Dist.] 1985) (a successor trustee is in privity with
their predecessors as trustees, with respect to legal claims or rights that may be
asserted). Thus, even assuming for the sake of argument that the permanent
records of the trust contain privileged materials, the successor trustee not the
former trustee is now the holder of that privilege.
Simply put, Appellees have never articulated any objection to the production
of the MHTEs records to the successor trustees that is sufficient to outweigh the
successor trustees fundamental right to access those materials.
II. At a Minimum, Judge Soliss July 30, 2013 Order Should Be Vacated or Remanded to the District Court, Because He Was Apparently Operating under an Undisclosed Conflict.
This case was assigned to Judge Solis on May 23, 2013. Two months later,
on July 30, 2013, Judge Solis entered his one and only substantive ruling in this
action, which is the order at issue on this appeal. (ROA.18175-85) (RE Tab 3). In
addition to being erroneous for the reasons discussed above, Judge Soliss order is
also loaded with intemperate language and disparaging descriptions of both Hill III
personally (who is accused of, e.g., tilt[ing] at yet another windmill) and the
legal positions advanced by Hill III and his counsel (e.g., Nothing in the express
language of the MHTE Articles of Agreement directs a trustee to confer the
permanent records of the MHTE to successor trustees as though it were the family
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Bible, handed down from generation to generation.). (See ROA.18176-77,
18180-81) (RE Tab 3).
Hill III timely appealed Judge Soliss ruling, and then on September 26,
2013, less than two months after entering his solitary substantive ruling Judge
Solis voluntarily recused himself without explanation. (ROA.18192).
The United States Supreme Court has held that when a district court recuses
itself after entering one or more substantive orders, an appropriate remedy under
certain circumstances is to vacate any orders and judgments entered after the point
when the court should have recused itself. See Liljeberg v. Health Servs.
Acquisition Corp., 486 U.S. 847, 864 (1988) (listing factors to be considered,
including: (1) the risk of injustice to the parties in the particular case, (2) the risk
that the denial of relief will produce injustice in other cases, and (3) the risk of
undermining the publics confidence in the judicial process).
In this action, between the time that Judge Solis was appointed to hear the
matter on May 23, 2013, and the time that Judge Solis recused himself on
September 26, 2013, no new parties or causes of action were added. It is therefore
highly probable, if not certain, that whatever conflict caused Judge Solis to recuse
himself existed at the time he was appointed, and at the time he entered the order
that is being appealed from. There is a high risk of injustice to the parties and
specifically to Hill III as well as a risk of undermining the publics confidence in
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the judicial process, when a judge who was apparently operating under a conflict
renders an important order that disparages ones party and then promptly recuses
himself thereafter.
Rohrbach v. AT&T Nassau Metals Corp. is instructive. 915 F. Supp. 712
(M.D. Pa. 1996). In that case, the district judge recused himself after presiding
over a case for four years and after entering a number of substantive rulings. In
order to minimize the risk of injustice in that case, the new district court judge
fashioned an appropriate remedy independently reviewing every prior ruling for
bias to address the undisclosed conflict. Id. at 717.
Here, if Judge Soliss one and