NO CV THE COURT OF APPEALS FOR THE FIFTH JUDICIAL DISTRICT OF TEXAS DALLAS, TEXAS

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1 NO CV THE COURT OF APPEALS FOR THE FIFTH JUDICIAL DISTRICT OF TEXAS DALLAS, TEXAS 5th Court of Appeals FILED: 01/09/ :00 Lisa Matz, Clerk MICHAEL ETTINGER, BETH MACBETH and SANDRA DE LOS SANTOS, APPELLANTS V. L. CODY GOODMAN, PAULA DAVIS, ALEX GOODMAN and MELISSA BOLYSON ROSNER, APPELLEES ON APPEAL FROM THE PROBATE COURT NO. 2 OF DALLAS COUNTY, TEXAS CAUSE NO PR /PR BRIEF OF APPELLEES, L. CODY GOODMAN, PAULA DAVIS, ALEX GOODMAN and MELISSA BOLYSON ROSNER John H. Phillips State Bar No BOONE, BOONE & PHILLIPS, L.L.P W. Lovers Lane Dallas, Texas Phone: Fax: ATTORNEY FOR APPELLEES, L. CODY GOODMAN, PAULA DAVIS, ALEX GOODMAN and MELISSA BOLYSON ROSNER Page 1

2 TABLE OF CONTENTS INDEX OF AUTHORITIES RECORD REFERENCES STATEMENT OF THE CASE STATEMENT REGARDING ORAL ARGUMENT ISSUES PRESENTED BY APPELLANTS Issue 1- Does the Joint Trust have an arbitration provision? Issue 2- Is the Joint Trust a contract between Larry C. Goodman and Shirley A. Goodman who are the settlors and the original beneficiaries of the Joint Trust? Issue 3- Is the arbitration provision in the Joint Trust enforceable to compel arbitration between the successor/current Co-Trustees and/or the successor/current - beneficiaries when the successor/current Co-Trustees and/or successor/current beneficiaries were not signatories to the Joint Trust? STATEMENT OF FACTS APPELLEES RE-STATEMENT OF FACTS OBJECTION TO STATEMENTS OF FACT BY APPELLANT SUMMARY OF THE ARGUMENT ARGUMENT PRAYER Page 2

3 CERTIFICATE OF SERVICE APPENDIX INDEX OF AUTHORITIES Cases: Coastal Liquids Transp., L.P. v. Harris County Appraisal Dist. 46 S.W.3d 880 (Tex.,2001) Dreyer v. Greene 871 S.W.2d 697 (Tex.,1993) In re Rubiola 334 S.W.3d 220 (Tex.,2011) , 13 J.M. Davidson, Inc. v. Webster 128 S.W.3d 223 (Tex.,2003) Rachal v. Reitz 347 S.W.3d 305 (Tex.App. Dallas,2011) Statutes: TEX. R. APP. P REFERENCES The Reporter s Record ( RR ) is referenced: [ RR (page) # (line) # ] The Clerk s Record ( CR ) is referenced: [ CR (page) # ] The Appendix ( AX ) is referenced: [ AX (item) # ] The Brief of Appellants ( BT ) is referenced: [ BT (page) # ] Page 3

4 STATEMENT OF THE CASE This is an appeal from an Order denying a motion to compel arbitration (CR 94). The motion to compel arbitration (CR 47) was brought by Michael Ettinger, Sandra De Los Santos, Beth MacBeth, Appellants herein, and Annette Boschma**, seeking to compel L. Cody Goodman, Paula Davis, Alex Goodman and Melissa Boylson Rosner, Appellees herein, to arbitrate their complaint (CR 5) to remove Michael Ettinger as a Trustee of a Trust created by Larry C. Goodman and Shirley A. Goodman, both deceased, of which all of Appellants and Appellees became beneficiaries following the deaths of Larry C. Goodman and Shirley A. Goodman (CR 11, CR 16). **Annette Boschma is a sister to Michael Ettinger, Sandra De Los Santos and Beth MacBeth and was a party to the motion to compel arbitration (CR 47) but is not named as an Appellant (CR 93). Page 4

5 STATEMENT REGARDING ORAL ARGUMENT Appellees, L. Cody Goodman, Paula Davis, Alex Goodman and Melissa Bolyson Rosner, believe that the briefs are more than adequate to address the issues in this case. However, if the Court determines that Appellants should have oral argument, then Appellees also respectfully request Oral Argument. Page 5

6 STATEMENT OF FACTS APPELLEES RE-STATEMENT OF FACTS This is a consolidation of two closely related cases involving a probate estate and a revocable living trust (the Trust ) created by a man and woman, both now deceased. Larry C. Goodman ( Larry ) and Shirley A. Goodman ( Shirley ) were married to each other. During their marriage they, as Trustors, created THE LARRY C. GOODMAN AND SHIRLEY A. GOODMAN REVOCABLE LIVING TRUST (the Trust ) of which they were each also trustees until their respective deaths. L. Cody Goodman and Michael Ettinger are named in the Trust to serve as co-trustees following the deaths of Larry C. Goodman and Shirley A. Goodman. Before their marriage to each other, Larry and Shirley had each been married to other persons, and each of them had four (4) children of their prior marriages before their marriage to each other. The children of Larry are L. Cody Goodman, Paula Davis, Alex Goodman and Melissa Boylson Rosner (Appellees herein). The children of Shirley are Michael Ettinger, Sandra De Los Santos, Beth MacBeth (Appellants herein) and Annette Boschma. Larry predeceased Shirley. Shirley died on April 27, 2009, and her Last Will and Testament, dated October 7, 1995, was admitted to probate in Cause No. PR on July 6, L. Cody Goodman and Michael Ettinger were appointed as co-independent Executors by Order dated July 6, They each qualified as such and Letters Testamentary were issued to them on July 6, Michael Ettinger s history in these cases is one of consistent failure/refusal to Page 6

7 perform his duties as a fiduciary. He was Ordered to file an inventory, appraisement and list of claims in Cause No. PR (AX 2), and when he did not comply he was removed as Co-Executor by Order dated November 4, 2010 (AX 3). Please note that the Court Record is incorrect in that it does not contain reference on the Docket Sheet to that said Order dated November 4, 2010 in Cause No. PR (CR 104). The Trust terminates upon the death of the second to die of Larry and Shirley. The general dispositive terms of the Trust are that following the death of Shirley [as the second to die of Larry and Shirley] that an amount of $10, each be distributed to each of her four (4) children, Michael Ettinger, Sandra De Los Santos, Annette Boschma and Beth MacBeth; and thereafter the remaining Trust property be distributed among L. Cody Goodman, Paula Davis, Alex Goodman, Melissa Boylson Rosner, Michael Ettinger, Sandra De Los Santos, Annette Boschma and Beth MacBeth. (CR ) Michael Ettinger has consistently failed or refused to perform as co-trustee in the administration, termination and distribution of the Trust. He has without any explanation failed or refused to communicate with the beneficiaries, even prior to suit being filed for his removal. He has failed or refused to give full disclosure of all material facts known to him that might affect the rights of the beneficiaries. He has failed or refused to cooperate with respect to identifying and inventorying Trust property, protecting Trust property, and distributing Trust property to the beneficiaries. He has failed or refused to even cooperate with his own lawyer, when Mr. Laird delivered securities to a brokerage firm and requested that he as a co-trustee execute certain documents for the brokerage firm in order to transact Page 7

8 business with those securities. (CR 7) None of these allegations have been denied by Michael Ettinger except by general denial answer (AX 5). As a result of Michael Ettinger s failure/refusal to perform his duties as a fiduciary, Appellees filed suit to remove him as co-trustee, and alternatively asked for removal of all trustees named in the Trust and for judicial appointment of an independent third party to serve as trustee in order to avoid further conflicts between the two sets of children of the Settlors. No known controversy whatsoever exists concerning the dispositive terms of the Trust, and none of the Records reflect any such controversy. Appellants moved for arbitration based upon an arbitration provision in the Trust - to which neither Appellants nor Appellees were signatories. (CR 47 ). The Probate Court properly denied the motion for arbitration. (CR 94, AX 1). Page 8

9 OBJECTION TO STATEMENTS OF FACT BY APPELLANTS Appellees object specifically to the Appellants statements concerning the supposed intentions of the Settlors of the Trust (BT 4) because they are not supported by the records to which they refer. Appellees object specifically to the Appellants statement concerning the supposed guarantee of the Settlors of the Trust to each other (BT 5) because it is not supported by the records to which it refers. Page 9

10 SUMMARY OF THE ARGUMENT Issue 1- Does the Joint Trust have an arbitration provision? Issue 2- Is the Joint Trust a contract between Larry C. Goodman and Shirley A. Goodman who are the settlors and the original beneficiaries of the Joint Trust? Issue 1 and Issue 2 are not bona-fide issues for appeal and need not be addressed. The Probate Court found that Larry and Shirley made a number of agreements between themselves, including an agreement to arbitrate. Regardless of whether or not there was a contract between Larry and Shirley, none of the Appellants and none of the Appellees signed either the Living Trust or the Amendment to the Living Trust, and the Probate Court expressly found no evidence that any of them (Appellants or Appellees) entered any written agreement to arbitrate matters before the Probate Court. Issue 3- Is the arbitration provision in the Joint Trust enforceable to compel arbitration between the successor/current Co-Trustees and/or the - successor/current beneficiaries when the successor/current Co-Trustees and/or successor/current beneficiaries were not signatories to the Joint - Trust? Regardless of whether there is an arbitration provision in the Trust, and regardless of whether the Settlors of the Trust contracted with each other, none of the Appellants and none of the Appellees have signed any agreement concerning arbitration, and accordingly none of them has the right to force any of the others to arbitration. There is, to Appellees knowledge, no Texas authority by which one party can compel another party to arbitrate under an Page 10

11 agreement that neither of those parties entered. Further, the dispute in question does not fall within the scope of the arbitration provision in the Trust. Additionally, Appellants raise the issue of estoppel for the first time on this Appeal, and it cannot be raised for the first time on appeal. Page 11

12 ARGUMENT Issue 1- Does the Joint Trust have an arbitration provision? Issue 2- Is the Joint Trust a contract between Larry C. Goodman and Shirley A. Goodman who are the settlors and the original beneficiaries of the Joint Trust? As stated above, Issue 1 and Issue 2 are not bona-fide issues for appeal and need not be addressed. The Probate Court found that Larry and Shirley made a number of agreements between themselves, including an agreement to arbitrate (CR 95). Regardless of whether or not there was a contract between Larry and Shirley, none of the Appellants and none of the Appellees signed either the Living Trust or the Amendment to the Living Trust (CR 95), and there is no evidence that any of them entered any written agreement to arbitrate matters before the Probate Court (CR 97). Issue 3- Is the arbitration provision in the Joint Trust enforceable to compel arbitration between the successor/current Co-Trustees and/or the - successor/current beneficiaries when the successor/current Co-Trustees and/or successor/current beneficiaries were not signatories to the Joint - Trust? Rubiola (In re Rubiola 334 S.W.3d 220 (Tex.,2011)) on which Appellants rely for authority that non-signatories can be bound to an arbitration agreement is easily and clearly distinguishable from this case. In Rubiola, the Salmons bought property from a brother of J.C. Rubiola. The Salmons then signed an arbitration agreement with Rubiola Mortgage Company which J.C. Rubiola signed on behalf of the company. The arbitration agreement Page 12

13 specifically defined the parties to include certain non-signatories who would be covered by the agreement. The Salmons also signed a form acknowledging that J.C. Rubiola had a dual role as real estate agent and mortgage broker. Later the Salmons sued the Rubiolas (and others) over the home construction and repairs, etc. The Rubiolas moved to compel arbitration against the Salmons under the arbitration agreement which the Salmons had signed. The Supreme Court agreed with the Rubiolas, that they were identified and included by the definition of parties within the agreement, and concluded that signatories to an arbitration agreement may identify other parties in their agreement who may enforce arbitration as though they signed the agreement themselves. In re Rubiola 334 S.W.3d 220, 226 (Tex.,2011). In the case before this Court neither Appellants nor Appellees have signed any agreement for arbitration, and accordingly Rubiola is not authority for the proposition that the non-signatory Appellants may force the non-signatory to arbitration. Appellants argue that the Trust made by Larry and Shirley was also contract between themselves, and that their children (the Appellants and the Appellees) as contingent beneficiaries after the deaths of Larry and Shirley somehow became bound by the terms of the contract. The Trust was created without any participation by any of the contingent beneficiary Appellants or Appellees. There is no evidence in any of the Records that any of the contingent beneficiary Appellants or Appellees even had knowledge of the creation of the Trust. There is no evidence in any of the Records that Larry or Shirley received any consideration from any of the contingent beneficiary Appellants or Appellees for the creation of the Trust. Page 13

14 Consequently, any interest of the contingent beneficiary Appellants or Appellees in the Trust was received by them from Larry and Shirley purely gratuitously and without obligation. Further, a party attempting to compel arbitration must first establish that the dispute in question falls within the scope of a valid arbitration agreement. J.M. Davidson, Inc. v. Webster 128 S.W.3d 223, 227 (Tex.,2003). The dissent in Rachal is quite instructive to this point and further distinguishes this case from the facts in Rachal. Justice Murphy in the dissent points out that the arbitration provision in Rachal requires arbitration of any dispute of any kind involving this Trust or any of the parties or persons concerned herewith (e.g., beneficiaries, Trustees), and concludes that Reitz s claims are within the scope of the arbitration agreement. Rachal v. Reitz 347 S.W.3d 305, 315 (Tex.App. Dallas,2011). The language of the arbitration provision in the Trust before this Court is considerably more restrictive. Matters for arbitration under the terms of the Trust are limited to Any controversy between the Trustee or Trustees and any other Trustee or Trustees or between any other parties to this Trust, including Beneficiaries, involving the construction or application of any of the terms, provisions or conditions of this Trust... (CR 36, 95) [emphasis added]. That more restrictive language certainly does not contemplate arbitration of a lawsuit to remove a trustee for breach of fiduciary duty or for failure/refusal to perform fiduciary duties. Appellants also raise the issue of estoppel for the first time on Appeal (BT 22), perhaps because it appears in Judge Wilmoth s discussion in his Conclusions of Law (CR 98). Prior to Judge Wilmoth s reference to estoppel it had not been raised by Appellants Page 14

15 anywhere, and the words estop, estoppel or estopped do not appear anywhere in the Reporter s Record (RR) or in the Clerk s Record (CR) other than in Judge Wilmoth s discussion (CR 98). A claim or complaint cannot be raised for the first time on appeal. TEX. R. APP. P As a rule, a claim, including a constitutional claim, must have been asserted in the trial court in order to be raised on appeal. Dreyer v. Greene 871 S.W.2d 697, 698 (Tex.,1993), and claims not made to the trial court generally cannot be raised for the first time on appeal. Coastal Liquids Transp., L.P. v. Harris County Appraisal Dist. 46 S.W.3d 880, 885 (Tex.,2001). Page 15

16 PRAYER Appellees respectfully pray that the Order of the Probate Court No. 2 of Dallas County dated October 20, 2011, denying the Motion for arbitration be affirmed. Respectfully Submitted, JOHN H. PHILLIPS State Bar No BOONE, BOONE & PHILLIPS, L.L.P W. Lovers Lane Dallas, TX Phone: Fax: jhphillips@swbell.net ATTORNEY FOR APPELLEES, L. CODY GOODMAN, PAULA DAVIS, ALEX GOODMAN and MELISSA BOLYSON ROSNER CERTIFICATE OF SERVICE I certify that a copy of the foregoing document has been served by mail, by hand delivery or by fax, and by to the counsel of record listed below on January 9, 2012: Paul Craig Laird II 800 W. Airport Freeway Suite 880, L.B Irving, TX fax pcl880@aim.com John H. Phillips Page 16

17 APPENDIX TO BRIEF OF APPELLEES 1. ORDER - Findings of Fact - Conclusions of Law - October 20, ORDER - To File Inventory - April 19, ORDER REMOVING INDEPENDENT EXECUTOR - November 4, TX Rules App.Proc., Rule DEFENDANT S ORIGINAL ANSWER - by Michael Ettinger - January 11, 2010 Page 17

18 APPENDIX 1

19 No. PR L CODY GOODMAN, PAULA DAVIS, ALEX GOODMAN AND MELISSA BOYLSON, IN PROBATE COURT Plaintiffs, V. NO. 2 OF MICHAEL ETTINGER AS CO- INDEPENDENT EXECUTOR OF THE ESTATE OF SHIRLEY A. GOODMAN, DECEASED, SANDRA DE LOS SANTOS, ANNETTE BOSCHMA AND BETH MACBETH, Defendants. DALLAS COUNTY, TEXAS ORDER The Court makes the following findings of fact and conclusions of law: Findings of Fact 1. On or about October 7, 1995, Larry C. Goodman ("Larry") and Shirley A. Goodman ("Shirley") executed an instrument styled The Larry C. Goodman and Shirley A. Goodman Revocable Living Trust Agreemens Dated 7 Oct., 1995 Between: Larry C. Goodman and Shirley A. Goodraan as Tntstors and: Larry C. Goodman and Shirley A. Goodman as Trustees creating a revocable living trust (the "Revocable Living Trust"), 2. The instrument creating the Revocable Living Trust identifies Larry and Shirley as the "Trustois" of the Revocable Living Trust. 3, The Revocable Living Trust was formed to hold title to real and personal property for the primary benefit of the Trustors. 4. The instrument creating the Revocable Living Trust designates Larry and Shirley as the Co-Trustees. FDNGS OF FACT AND CoNclusioNs OF LAW PAGE 1

20 5. The contingent beneficiaries of the Revocable Living Trust are L. Cody Goodman, Paula Davis, Alex Goodman, Melissa Boylson, Michael D. Ettinger. Sandra S. De Los Santos, Beth A. Macbeth and Annette R. Boschrna (collectively, the "Contingent Beneficiaries"). For convenience, the Contingent Beneficiaries shall each be referred to herein by his or her first name. 6. None of the Contingent Beneficiaries signed the instrument creating the Revocable Living Trust. 7. The instrument creating the Revocable Living Trust contains a number of agreements between Larry and Shirley, including an agreement to arbitrate, which is found in Section 7.01: Any controversy between the Trustee or Trustees and any other Trustee or Trustees or between any other parties to this Trust, including Beneficiaries, involving the construction or application of any of the terms, provisions or condition of this Trust shall, on the written request of either or any disagreeing party served on the other or others, be submitted to arbitration. The parties to such arbitration shall each appoint one person to hear and determine the dispute and, if they are unable to agree, then the two persons so chosen shall select a third impartial arbitrator whose decision shall be final and conclusive upon both parties. The cost of arbitration shall be borne by the losing party or in such proportion as the arbitrator(s) shall decide. Such arbitration shall comply with the commercial arbitration rules of the American Arbitration Association, 140 West 51st Street, New York, New York, 10200, 8. An Amendment to Revocable Living Trust Agreement, amending certain provisions of the Revocable Living Trust, was executed by Larry and Shirley on or about May 22, 1999 (the "Amendment"). 9. None of the Contingent Beneficiaries signed the Amendment. FN1MOS Of FACT.&'.O CoNcLusioNs OF LAW PAGE 2

21 10. On November 17, 2009, Cody, Paula, Alex and Melissa filed a Complaint for Removal of Michael Ettinger as Co-independent Executer and Co-Trustee. 11, On July 18, 2011, Michael, Annette, Beth and Sandra (collectively, the 'Movants") filed a Written Request/Application for Arbitration Objection to Hearings and Plea to the Jurisdiction ("Motion").' 12. Cody, Paula, Alex and Melissa (collectively, the "Respondents") responded to the Motion on July 25, A hearing on the Motion was held on September 13, The Court signed an Order denying the Motion on September 19, The Movants fiied a request for findings of fact and conclusions of law ("Request") on September 20, The Movants filed a Notice of Past Due Findings of Fact and Conclusions of Law 'Notice") on October The Respondents did not respond or object to the Request or the Notice. Conclusion of Law 18, "It is a foundational principle that a party cannot be compelled to arbitrate a dispute when the party has not agreed to do so." Rachal v. Reitz, No CV, 2011 Tex. App. LEXIS 5598, at 4 (Tex. App, Dallas July 22, pet. filed). 19. The Movants bear the burden of showing the existence of an agreement to arbitrate.!d. 20. Nonparties are not normally bound by an arbitration agreement between others. Roe. Ludymopi. 318 S.W.3d 502, 511 (Tex. App. Dallas 2010, no pet. h.). The Motion was filed in Case No. PR Movants filed the request fir findings of fact and conclusions of law in PR Movants filed the Notice in PR Fn4ornGs OF FACT AND CONCLUSIONS OF LAW PAGE 3

22 21. "Texas courts apply the Texas [Arbitration] Act 'only when a valid written agreement to arbitrate exists between the parties to the agreement or the contract.'" Phillips v AS Mun. Brokers, inc., 888 S.W.2d 872, 875 (Tex. App. Dallas 1994, no pet. h.) (quoting Di Giamrnatteo v. Olney. 794 S.W.2d 103, 104 (Tex. App. Dallas 1990, no writ]) (emphasis in Phillips)). See also Rachal, 2011 Tex. App. LEXIS 5598, at * ("An agreement containing an arbitration clause, signed by the parties, and attached to a pleading, establishes the existence of an arbitration agreement as a matter of law when the parties present no evidence disputing their signatures.") (emphasis added). 22. There is no evidence that either the Movants or the Respondents signed the instrument creating the Revocable Living Trust or entered any written agreement among themselves to arbitrate the matters now before the Court. 23. An agreement to arbitrate can become binding on a person who did not sign the agreement when principles of contract law and agency would bind the nonsignatory to the agreement to arbitrate. Roe. 318 S.W.3d at 511. "Thus non-signatories to a contract containing an arbitration clause may be required to arbitrate if rules of law or equity would bind them to the contract generally," id 24. For example, the administrators of a decedent's estate were compelled to arbitrate a dispute against a brokerage firm where the decedent's agent, acting under a power of attorney, signed a contract requiring arbitration of disputes relating to the broker's actions under the contract. See Citigroup Global Markets, Inc. v. Brown, 261 S.W.3d 394, 401 Crex. App. Houston [14th Dist.] 2008, no pet. h.). F1'nIr4os OF FACr AND CONCLUSIONS CF LAW PAGE 4

23 25, By contrast, a defendant who signed an arbitration agreement in his capacity as an officer of a limited partnership was not required to arbitrate claims against the defendant in his individual capacity. See Roe, 318 S.W.3d at Movants do not contend that any other principle of law or equity would require the Respondents to arbitrate the present claims. 27. Courts have also allowed non-signatories to enforce arbitration clauses against signatories to an agreement to arbitrate. See, e.g. In re Vesta Ins. Group, Inc., 192 S.W.3d 759, (Tex. 2006); In re Hawthorne Townhome L.P., 282 S.W.3d 131, 135 (Tex. App Dallas 2009, no pet. h.). Principles of estoppel permit this result. See Roe, 318 S.W.3d at 520 (citing Bridas S.A.P.LC. v. Gov't of Turkmenistan, 345 F.3d 347, 361 (5th Cir. 2003). But the reverse is not also true: a signatory may not estop a non j,-jsignatory from avoiding arbitration regardless of how closely affiliated the non[-] signatory is with another signing party." Id. (quoting Bridas, 345 F.3d at 361). 28. Movarns directed the court's attention to no Texas cases in which a nonsignatory prevailed on a motion to compel another non-signatory to arbitrate under an agreement neither entered. 29. Because Movarus have failed to show that (i) the Respondents agreed to arbitrate the dispute presently before the Court or (ii) any principle of law or equity would bind the Respondents to Larry and Shirley's agreement to arbitrate, the Motion is DENIED. Signed this At of October Judge Presiding FJNDtGS or f.4c'r ANI) CONCLUSIONS OF LAW PAGE 5

24 APPENDIX 2

25 0 NO. PR ESTATE OF PROBATE COURT SHIRLEY A. GOODMAN, NUMBER 2 OF DECEASED DALLAS COUNTY, TEXAS ORDER It appears to the Court that Michael Ettinger and L. Cody Goodman, Independent Executor of the captioned estate has failed to file an inventory, appraisement and list of claims that can be approved as required by law. IT IS ORDERED that Michael Ettinger and L. Cody Goodman, file the inventory, appraisement and list of claims within (20) twenty days from date of service herein. IT IS FURTHER ORDERED that the Clerk of this Court mail a copy of this Order to Michael Ettinger in care of his resident agent and attorney Paul Craig Laird II and to L. Cody Goodman, by Certified Mail, Return Receipt Requested, marked "Deliver to Addressee Only", and a copy to his (L. Cody Goodman) attorney, Mr. John H. Phillips, by Certified Mail, Return Receipt Requested, marked "Deliver to Addressee Only". SIGNED THIS DAY OF APRIL, JUDGE NOTE: Failure to file the INVENTORY, APPRAISEMENT AND LIST OF CLAIMS subjects the Personal Representative to a fine not exceeding $ and removal from office; furthermore, failure to observe such order may constitute contempt of court and subject the party to fine and confinement. Mr. Michael Ettinger do Mr. Paul Craig Laird II Attorney at Law 800 West Airport Freeway Suite 880 Irving, Texas Mr. L. Cody Goodman 522 Buffalo Drive Arlington, Texas Mr. John H. Phillips Attorney at Law 4313 West Lovers Lane Dallas, Texas I J TRUE MD COR COP Oftft FILED IN DALLAS

26 APPENDIX 3

27 NO. PR ESTATE OF IN THE PROBATE COURT SHIRLEY A. GOODMAN, NO. 2 OF DECEASED DALLAS COUNTY, TEXAS ORDER REMOVING INDEPENDENT EXECUTOR It appears to the Court that MICHAEL ETTINGER, an Independent Executor of the captioned estate has failed to file an inventory, appraisement and list of claims on or before November 1, 2010, as directed by Order of this Court dated October 22, 2010, and should be removed as an Independent Executor. IT IS ORDERED that MICHAEL ETTfNGER is hereby Removed as an Independent Executor of the Estate of SHIRLEY A. GOODMAN, Deceased. IT IS FURTHER ORDERED that the Clerk of this Court mail a copy of this Order to Michael Ettinger in care of his resident agent and attorney, Paul Craig Laird II, by Certified Mail, Return Receipt Requested, marked "Deliver to Addressee Only." Signed this day of November, JUDGE PRESIDING Mr. Michael Ettinger do Mr. Paul Craig Laird II Attorney at Law 800 West Airport Freeway Suite 880 Irving, Texas

28 APPENDIX 4

29 Wtbw, TX Rules App.Proc,, Rule 33.1 Page 1 C Vernon's Texas Rules Annotated Currentness Texas Rules of Appellate Procedure zi Section Two. Appeals from Trial Court Judgments and Orders (Refs & Annos) 1KM Rule 33. Preservation of Appellate Complaints (Refs & Annos) Preservation; How Shown (a) In General. As a prerequisite to presenting a complaint for appellate review, the record must show that: (1) the complaint was made to the trial court by a timely request, objection, or motion that: (A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and (B) complied with the requirements of the Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or Appellate Procedure; and (2) the trial court: (A) ruled on the request, objection, or motion, either expressly or implicitly; or (B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal. (b) Ruling by Operation of Law. In a civil case, the overruling by operation of law of a motion for new trial or a motion to modify the judgment preserves for appellate review a complaint properly made in the motion, unless taking evidence was necessary to properly present the complaint in the trial court. (c) Formal Exception and Separate Order Not Required. Neither a formal exception to a trial court ruling or order nor a signed, separate order is required to preserve a complaint for appeal. (d) Sufficiency of Evidence Complaints in Nonjury Cases. In a nonjury case, a complaint regarding the legal or factual insufficiency of the evidence--including a complaint that the damages found by the court are excessive or inadequate, as distinguished from a complaint that the trial court erred in refusing to amend a fact finding or to make an additional finding of fact--may be made for the first time on appeal in the complaining party's brief Thomson Reuters. No Claim to Orig. US Gov. Works.

30 TX Rules App.Proc., Rule 33.1 Page 2 CREDIT(S) Eff. Sept. 1, Amended by Supreme Court Dec. 23, 2002, eff. Jan. 1, Current with amendments received through August 1, 2011 (c) 2011 Thomson Reuters. No claim to Orig. U.S. Govt. Works. END OF DOCUMENT 2012 Thomson Reuters, No Claim to Orig. US Gov. Works.

31 APPENDIX 5

32 CAUSE NO. PR ii r. ESTATE OF IN THE PROBATECOtJ1T t' Q SHIRLEY A GOODMAN NO 2 OF DECEASED DALLAS COUNTY, TEXAS DEFENDANT'S ORIGINAL ANSWER Michael Ettinger, Defendant, files Respondent's Original Answer and shows: 1. General Denial Defendant enters a general denial. 2. Prayer Defendant believes that Plaintiff and Defendant will enter an agreed decree. Respondent prays for general relief. Respectfully submitted, ASHLEY & LAIRD, L.C. CERTIFICATE OF SERVICE Paul Craig Laird I) State Bar No W. Airport Freeway Suite 880, LB 6015 Irving, TX (972) (972) Fax ATTORNEY FOR RESPONDENT I certify that a true copy of the above was served on Petitioner's attorney or record or party in accordance with the Texas Rules of Civil Procedure on January 10, Signed this j I day of January, Paul Craig!Laird. DEFENDANT'S ORIGINAL ANSWER PAGE 1 OF 1