Hill IIIReply Brief

2991148
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,
J R. 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, J R.; ALBERT G. HILL, J R.; ALINDA H. WIKERT; LYDA HILL;
HEATHER V. WASHBURNE; ELISA M. SUMMERS; MARGARET HUNT TRUST ESTATE;
HARDOLSON LAFAYETTE HUNT J R. 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.; J OHN 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: 00512579809 Page: 1 Date Filed: 03/31/2014

2991148

On Appeal from the United States District Court
for the Northern District of Texas
No. 07-CV-02020-L, Sam A. Lindsay, J udge Presiding

REPLY BRIEF OF APPELLANT

Iian D. J ablon
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


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TABLE OF CONTENTS
Page
STATEMENT REGARDING ORAL ARGUMENT ............................................ 1
INTRODUCTION .................................................................................................. 1
ARGUMENT .......................................................................................................... 4
I. The Plain Language of the MHTEs Articles of Agreement
Provides That Successor Trustees of the Sub-Trusts Created
From the MHTE Are Entitled to Copies of the Archives
and Permanent Records of the MHTE. ............................................ 4
II. Appellees Contention that the Releases Contained in the
Settlement Agreement Somehow Prohibit the Successor
Trustees From Obtaining the Books and Records of the
MHTE Is Incorrect. ............................................................................ 8
III. Hill III Has Not Waived His Right to Appeal .................................. 11
IV. None of Appellees Other Reasons for Denying the
Successor Trustees Access To the MHTEs Books and
Records Is Sufficient to Override the MHTEs Articles of
Agreement. ....................................................................................... 14
V. In the Alternative, the District Courts Order Should Be
Vacated Because the District J udge Was Apparently
Operating Under an Undisclosed Conflict. ...................................... 19
CONCLUSION ..................................................................................................... 22


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TABLE OF AUTHORITIES
Page(s)
Cases
Hill v. Hunt, et al.,
Case No. 3:07-cv-02020-L (N.D. Tex. filed Mar. 24, 2014) ............................... 22
Hoenig v. Texas Commerce Bank, N.A.,
939 S.W.2d 656 (Tex. App. San Antonio 1996, no writ.) ......................... 16, 17
Huie v. DeShazo,
922 S.W.2d 920 (Tex. 1996) ................................................................................ 18
In re Bradley,
501 F.3d 421 (5th Cir. 2007) ............................................................................... 18
Interfirst Bank-Houston, N.A. v. Quintana Petroleum Corp.,
699 S.W.2d 864 (Tex. App. Houston [1st Dist.] 1985) .................................... 18
Jordan v. Court of Appeals for the Fourth Supreme Judicial Dist.,
701 S.W.2d 644 (Tex. 1985) ................................................................................ 18
Liljeberg v. Health Servs. Acquisition Corp.,
486 U.S. 847 (1988) ............................................................................................. 20
Patterson v. Mobil Oil Corp.,
335 F.3d 476 (5th Cir. 2003) ............................................................................... 20
Taylor v. Charter Med. Corp.,
162 F.3d 827 (5th Cir.1998) ................................................................................ 22
Statutes and Regulations
Fed. R. Evid. 201 ..................................................................................................... 22
Tex. Prop. Code 113.084 ................................................................................. 9, 10
Rules
Fed. R. Civ. P. 59 .................................................................................. 13, 14, 15, 21
Fed. R. Civ. P. 60 ..................................................................................................... 22
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STATEMENT REGARDING ORAL ARGUMENT
Plaintiff-Appellant Albert G. Hill, III (Hill III) respectfully submits that
this appeal is suitable for oral argument, and hereby renews his request that the
Court hold argument on this matter. Appellant further notes that while Appellant
previously filed two prior appeals in this action that were consolidated for hearing,
those appeals were based on entirely different legal and factual issues than those
presented in this appeal.
1
Accordingly, there is no need nor any apparent judicial
economy in attempting to reconstitute the panel that considered Hill IIIs prior
appeals, particularly if doing so will result in delaying the resolution of the instant
appeal.
INTRODUCTION
Defendants-Appellees response brief seeks to avoid addressing the central
question presented in this appeal namely, whether the trustees of the sub-trusts
created from the Margaret Hunt Trust Estate (hereinafter, the MHTE) pursuant
to the parties Global Settlement Agreement (ROA.Sealed, Dkt. 879, hereinafter
the Settlement Agreement (SROA.25740-79)) are entitled to obtain copies of the
archives and permanent records of the MHTE. Instead, Appellees response
brief focuses on incorrect and irrelevant assertions that are transparently designed

1
United States Court of Appeals for the Fifth Circuit Case Nos. 11-10348 and 12-
10620.
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to prejudice this Court against Hill III in the apparent hopes that the Court will
never consider the merits of Hill IIIs appeal.
Appellees do not dispute that the Settlement Agreement and the Final
J udgment require the former trustees to divide the MHTE into sub-trusts, and
further provide that those sub-trusts are continuations of the original 1935 trust
not terminations of that trust. It is also undisputed that the sub-trusts continue to
be governed by the MHTEs 1935 Articles of Agreement and Declaration of Trust
(hereinafter, the Articles of Agreement). The Articles of Agreement specifically
require the trustee of the MHTE to maintain the archives and permanent records
of the trust, and further provide that a successor trustee steps into the shoes of the
departing trustee. Accordingly, the plain language of the Articles of Agreement
which Articles are expressly incorporated into the parties Settlement Agreement
and the Final J udgment makes clear that the successor trustees are entitled to
access the archives and permanent records of the trust. Any other conclusion
would require the Court to ignore the Articles of Agreement, Texas law, and
common sense.
Appellees seek to avoid the plain meaning of the Articles of Agreement by
contending that the Settlement Agreement and Final J udgment limit the successor
trustees ability to investigate or sue the former trustees of the MHTE on claims
that were released by Hill III in the Settlement Agreement. However, this
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argument improperly conflates two separate and unrelated issues. There is no
dispute that the prior trustees are released pursuant to the Settlement Agreement
for alleged misconduct that occurred prior to the settlement. But that release does
not permit the prior trustees to refuse to provide copies of the MHTEs books and
records to the successor trustees in connection with sub-dividing the trust as
required by the parties settlement. To the contrary, the archives and permanent
records of the MHTE clearly belong to the trust itself, not to the former trustees,
and should have been part of the trust property that was turned over to the
successor trustees when the MHTE was divided into sub-trusts pursuant to the
Final J udgment.
Appellees other arguments as to why the trustees of the sub-trusts of which
Hill III is a beneficiary purportedly have no right to obtain copies of the MHTEs
books and records are similarly unavailing. And, notably, Appellees do not even
attempt to address one of the most glaring questions created by their position: why
are the trustees of sub-trusts of which certain Appellees are beneficiaries entitled to
obtain complete copies of the MHTEs books and records, while the trustees of the
sub-trusts of which Hill III is a beneficiary are supposedly not entitled to those
same records? Appellees provide no answer to that question, because nothing in
the Settlement Agreement, the Final J udgment, the Articles of Agreement, or
Texas law supports the notion that such disparate treatment is permissible.
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The district courts conclusion to the contrary is erroneous as a matter of law
and should be reversed. In the alternative, because the district court judge was
apparently operating under an undisclosed conflict at the time that he entered the
order denying Hill IIIs Motion to Enforce and Compel that gives rise to this
appeal, this Court should vacate the district courts order and remand to the new
district court judge for de novo consideration of Hill IIIs motion.
ARGUMENT
I. The Plain Language of the MHTEs Articles of Agreement Provides
That Successor Trustees of the Sub-Trusts Created From the MHTE
Are Entitled to Copies of the Archives and Permanent Records of the
MHTE.
Appellees concede that the appropriate standard of review with respect to
Hill IIIs appeal is de novo (Appellees Brief at 23), but then argue that this Court
should summarily adopt the district courts reasoning even though that reasoning
is directly contrary to the plain language of the MHTEs Articles of Agreement.
See Appellees Brief at 40. In this regard, Appellees do not dispute much less
refute the basic premise of Hill IIIs position, which is that the newly-created
sub-trusts are continuations of, and not terminations of, the MHTE. See Opening
Brief at 15, 19. Both the Settlement Agreement and the Final J udgment are clear
and unambiguous on this point: the MHTE has not been terminated, but rather has
simply been divided into sub-trusts, each of which is governed by the original
Articles of Agreement. (ROA.Sealed, Dkt.879 at 23-24 (RE Tab 10)
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(SROA.25762-63); ROA.Sealed, Dkt.999 at 7-8, 24-25 (RE Tab 9) (SROA.28162-
63, 28179-80)).
As discussed in Hill IIIs Opening Brief, the Articles of Agreement
specifically require the trustee, including any successor trustee, to maintain the
archives and permanent records of the trust. Opening Brief at 15; see also
(ROA.17765 (RE Tab 5)). Further, the Articles of Agreement provide that a
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)).
Because the sub-trusts created pursuant to the Final J udgment are
indisputably continuations of the MHTE, and are also indisputably governed by
the Articles of Agreement, the plain language of the Articles of Agreement
controls. In relevant part, the Articles of Agreement provide that the successor
trustees of the sub-trusts shall step into the shoes of the prior trustee, and shall
continue to maintain the existing archives and permanent records. (ROA.17765
(RE Tab 5)). Simply put, these provisions mean that an outgoing trustee must
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provide a successor trustee with access to the permanent books and records of the
trust.
2

Separately and additionally, it is also clear from the Articles of Agreement
that the archives and permanent records belong to the trust itself, not to the
trustee personally. (ROA.17765 (RE Tab 5)). Accordingly, when the former
trustees divided the MHTEs property among the sub-trusts created pursuant to the
Final J udgment, each of the sub-trusts was entitled to receive a copy of the
archives and permanent records of the trust.
Not only is this result clear from the Articles of Agreement, but is rendered
even clearer when the Court considers that the MHTE sub-trusts created for the
benefit of certain of the Appellees have apparently received complete copies of the
books and records of the MHTE, while the sub-trusts created for Hill IIIs benefit
have not. Appellees offer no explanation whatsoever as to why some of the sub-
trusts (i.e., those associated with Appellees) are entitled to complete copies of the
MHTEs permanent records, but other sub-trusts (i.e., those associated with Hill
III) are not entitled to receive copies of those same materials. Nothing in the

2
Notably, the magistrate judge found that the intent of the Articles of Agreement
was likely to require an outgoing trustee to turn over the trusts books and records
to a successor trustee: [i]n all likelihood, the drafters of the MHTE trust
agreement contemplated that such records and books would naturally be given to
any successor trustees. (ROA.17980 (RE Tab 4)).
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Settlement Agreement, the Final J udgment, the Articles of Agreement, or Texas
law supports such a result.
In the apparent hope of deflecting this issue, Appellees weakly argue that
many of the MHTEs records were produced to Hill III prior to the parties
settlement in 2010. Appellees Brief at 5-6. But the fact that many of the records
may have been produced to Hill III prior to the settlement is wholly irrelevant,
because Appellees cannot and do not contend that a complete copy of the archives
and permanent records was ever provided either to Hill III or to the trustees of the
sub-trusts of which Hill III is a beneficiary. Needless to say, selectively producing
only some of the trust records is not remotely the same thing as producing all of
the records.
In denying Hill IIIs motion that gave rise to this appeal, the district court
concluded that the successor trustees of the sub-trusts associated with Hill III are
not entitled to obtain copies of the archives and permanent records of the trust
because their only obligation is to maintain such records henceforth (a term that
is not contained in the Articles of Agreement, and which the district court
unilaterally inserted) i.e., after the time the Final J udgment was entered. See
Opening Brief at 16-18; (ROA.17761, 17765 (RE Tab 5)). However, the district
courts conclusion is inconsistent with, and would require this Court to ignore
portions of, the plain language of the Articles of Agreement cited above. This fact
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is amply demonstrated by Appellees inability to cite any competent evidence or
law supporting the district courts reasoning instead, Appellees simply cite to the
district courts ruling itself. Appellees Brief at 40. But since this Court owes no
deference to the district courts decision when, as here, the standard of review is de
novo, the district courts unsupported conclusion is not a sufficient reason to
disregard the plain language of the Articles of Agreement.
II. Appellees Contention that the Releases Contained in the Settlement
Agreement Somehow Prohibit the Successor Trustees From Obtaining
the Books and Records of the MHTE Is Incorrect.
Appellees also contend that Hill IIIs appeal is foreclosed because both the
Settlement Agreement and the Final J udgment prohibit the successor trustees of the
sub-trusts from investigating misconduct committed by the prior trustees.
Specifically, Appellees rely upon Paragraph 16 of the Final J udgment, which
provides that:
no Agreeing Party, successor trustee, or successor advisory board
member of the MHTE, the HHTE, or any of the New Hunt Trusts,
shall be authorized, entitled, or required to investigate or maintain
any claim or cause of action against any prior trustee or advisory
board member for negotiating or implementing the terms of the
Agreement or this Final J udgment, including the appointment of
trustees or advisory board members for any of the New Hunt Trusts,
or for any act or omission (in any capacity) that has been released
by the Agreement or this Final Judgment, or for failure to furnish
any trust accounting for either the MHTE, the HHTE, or the New
Hunt Trusts for the time periods before and including the resignation
dates of the current trustees and advisory board members.

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(ROA.Sealed, Dkt. 999 at 26 (SROA.28181)) (emphasis added); see also
(ROA.Sealed, Dkt. 879 at 24-25 (SROA.25763-64)).
Appellees argument based upon Paragraph 16 improperly conflates two
separate and distinct issues: a release for prior misconduct (which was granted),
and a waiver of the successor trustees right to access the books and records of the
trust (which was not granted). There is no dispute that the Settlement Agreement
and the Final J udgment include releases in favor of the former trustees of the
MHTE with respect to conduct occurring prior to the parties settlement.
However, that release does not in any way obviate the former trustees duty under
the Settlement Agreement and the Final J udgment to divide the MHTE into sub-
trusts that will continue to be governed by the Articles of Agreement. As
explained above, the Articles of Agreement make clear that this necessarily
includes the obligation to make copies of the books and records of the trust
available to the successor trustees.
In this regard, the Final J udgment, which is the order of the court
appointing a successor trustee (Tex. Prop. Code 113.084), contains no language
whatsoever restricting the rights of a successor trustee to obtain copies of the
archives and permanent records of the MHTE. However, both the MHTE Articles
of Agreement and Texas Property Code 113.084 provide that the successor
trustee steps into the shoes of the former trustee with respect to all rights and duties
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set forth in the trust instrument, which includes the duty to maintain the archives
and permanent records of the trust. Tex. Prop. Code 113.084; (see 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)).
Simply put, the Settlement Agreement and Final J udgment place certain
restrictions on a successor trustees ability to use the books and records of the
MHTE for the purpose of asserting claims against a former trustee. However,
neither the Settlement Agreement nor the Final Judgment provides or even
suggests that successor trustees are not entitled to obtain copies of the books and
records of the trust. Because neither the Settlement Agreement nor the Final
J udgment addresses this issue, the MHTEs Articles of Agreement control and,
as discussed above, the Articles of Agreement do address this issue in clear and
unambiguous terms.
Relatedly, Appellees incorrectly contend that the central issue in this appeal
is whether the Settlement Agreement (ROA.Sealed, Dkt. 879 (SROA.25730-79))
or the Final J udgment (ROA.Sealed, Dkt. 999 (SROA.28156-99)) contain a
requirement that the former trustees of the MHTE produce the books and
records of the MHTE for inspection. Respondents Brief at 30-31. It is
undisputed that neither the Settlement Agreement nor the Final J udgment makes
any mention of the archives and permanent records of the MHTE at all.
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Appellees contend that this silence somehow supports their position. It does not.
To the contrary, the parties expressly agreed in the Settlement Agreement that the
MHTE would be divided into sub-trusts, and that the Articles of Agreement would
continue to govern the sub-trusts meaning that the terms of the Articles of
Agreement are incorporated into the parties Settlement Agreement. (ROA.Sealed,
Dkt.879 at 23-24 (RE Tab 10) (SROA.25762-63); ROA.Sealed, Dkt.999 at 7-8, 24-
25 (RE Tab 9) (SROA.28162-63, 28179-80)). The Articles of Agreement directly
speak to the issue of the books and records of the trust, and provide that a
successor trustee has a duty to continue to maintain the archives and permanent
records of the trust. (ROA.17765 (RE Tab 5)).
In light of the foregoing, it is clear that the district court erred by concluding
that the release in favor of the prior trustees somehow means that the successor
trustees are not entitled to obtain copies of the books and records of the MHTE.
(ROA.18181 (RE Tab 3)).
III. Hill III Has Not Waived His Right to Appeal
Appellees also argue that the district court entered an order in March 2011
ruling against Hill III on the same issues presented in this appeal, and that Hill III
waived his right to appeal because he did not timely challenge that order.
Appellees are wrong.
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As explained in Hill IIIs Opening Brief, Hill III timely filed a motion
pursuant to Fed. R. Civ. P. 59(e) seeking to alter or amend the Final J udgment to
add a new provision that would compel the prior trustees of the MHTE to provide
Hill III with an accounting and a right of inspection based on the fact that
approximately six months had passed between the time of the parties settlement
and the date the Final J udgment was entered. Opening Brief at 25-27. The district
court denied Hill IIIs Rule 59(e) motion, finding that it was not appropriate for the
court to impose new settlement terms that the parties had not agreed to. (ROA.,
Dkt. 1099 at 11 (RE Tab 8) (SROA.29231); see also (ROA.17761-67 (RE Tab 5)).
Subsequently, after the sub-trusts had been created pursuant to the Final
J udgment, Hill III filed a Motion to Enforce and Compel requesting that the
successor trustees of the sub-trusts of which he is a beneficiary be given access to
the books and records of the MHTE based upon the Articles of Agreement and on
Texas law. (ROA.17738-49). The legal basis for Hill IIIs Motion to Enforce and
Compel was clearly different than the basis for Hill IIIs Rule 59(e) motion the
new motion was based on the terms of the Articles of Agreement and Texas law;
the Rule 59(e) motion was explicitly based upon the Courts inherent authority to
impose terms that were consistent with the intent of the parties settlement.
(ROA.Sealed, Dkt. 1050 at 14-15 (SROA.28494-95)). Moreover, the relief
requested in the Motion to Enforce and Compel was also different than the prior
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motion the new motion requested that copies of the books and records be made
available to the successor trustees, at the successor trustees expense; the Rule
59(e) motion requested that the prior trustees be ordered to provide Hill III with an
accounting and a personal right of inspection.
3
(ROA.17739; ROA.Sealed, Dkt.
1050 at 14-15 (SROA.28494-95)).
Appellees nonetheless contend that Hill III could have appealed the district
courts decision not to amend the Final J udgment to include a provision
specifically entitling Hill III to an accounting and personal right of inspection, and
by not appealing that ruling he has somehow waived his right to bring the instant
appeal. But despite Appellees attempts to make it so, this appeal is not about Hill
III attempting to obtain an accounting from the prior trustees, let alone a request by
Hill III that the Court should impose new settlement terms. Rather, the question
presented here is whether the successor trustees of the sub-trusts created pursuant
to the Final J udgment are entitled pursuant to the Articles of Agreement and Texas
law to access the archives and permanent records of the MHTE an issue that was
only presented to the district court after the successor trustees attempts to obtain
the trusts records were rebuffed in November 2011 and J anuary 2012.
(ROA.17786-99). Far from being waived, this issue had not been adjudicated by

3
As explained in Hill IIIs Opening Brief, requesting that a trustee provide a
beneficiary with an accounting and right of inspection is separate and distinct from
requesting that a departing trustee provide a successor trustee with copies of the
archives and permanent records of the trust. Opening Brief at 26-27.
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the district court and was not ripe for review at the time that Hill III filed his
original appeal in this action.
Simply put, there is no waiver here because the question of the successor
trustees rights presented on this appeal was not raised in Hill IIIs Rule 59(e)
motion and was not resolved in the district courts March 2011 order. In this
regard, it is notable that Appellees did not argue that Hill III had waived these
arguments when they responded to Hill IIIs Motion to Enforce and Compel that
gives rise to this appeal, or when they responded to Hill IIIs appeal to the district
court from the magistrates order on that motion. (See, e.g., ROA.Sealed, Dkt.
1266, 1268, 1271 (SROA.31571-91, 32043-59, 32100-13); ROA.Sealed, Dkt.
1350, 1353 (SROA.33865-86, 34364-84)).
IV. None of Appellees Other Reasons for Denying the Successor Trustees
Access To the MHTEs Books and Records Is Sufficient to Override the
MHTEs Articles of Agreement.
As Hill III explained in his Opening Brief, whether or not the successor
trustees need access to the MHTEs books and records is not relevant to the
question of whether they are entitled to such access under the Articles of
Agreement and Texas law. E.g., Opening Brief at 21. But in addition to being
irrelevant, Appellees arguments as to why the successor trustees purportedly do
not need access to the trusts records are incorrect and not supported by the
record.
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First, Appellees incorrectly assert that the new trustees do not need access
to the books and records of the trust because the already-produced audited
financial statements of the trust are purportedly sufficient to permit the successor
trustees both to administer the sub-trusts and review the former trustees division
of trust assets.
4
Appellees Brief at 33-36. However, the successor trustees of the
Hill III sub-trusts have testified by undisputed declaration that they are unable to
properly administer the sub-trusts without access to the books and records to,
among other things, definitively ascertain or verify, and if necessary, defend,
the tax basis of certain of the assets held in the sub-trusts. (ROA.17788, 17795).
Appellees offered no evidence to contradict this sworn testimony. Moreover,
Appellees have offered no authority that supports their premise that a successor
trustee is required to rely solely on summary statements provided by the former
trustees in lieu of the underlying books and records of the trust. Appellees Brief
at 7-8, 37.

4
Appellees incorrectly argue that neither Hill III nor the successor trustees of
the Hill III sub-trusts ever questioned the schedules filed by the former trustees
in December 2010 regarding the division of the MHTE assets. Respondents Brief
at 35. To the contrary, Hill III has repeatedly raised questions about the fairness
and adequacy of the division of the trust, but has been severely hamstrung by the
fact that neither he nor the successor trustees have access to the complete books
and records of the trust. (See, e.g., ROA.Sealed, Dkt. 1348 at 1-2 , 6-12
(SROA.33721-22, 33726-32); see also ROA.Sealed, Dkt. 1082 at 21
(SROA.28952)).
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In this same regard, Appellees have not explained how, without access to the
books and records of the trust, Hill III or the successor trustees could ever verify
that the former trustees have complied with their obligation under the Final
J udgment to:
start with separate shares as of the date of death of Margaret Hunt Hill
on J une 14, 2007, and then all subsequent receipts, disbursements,
gains, and losses shall be allocated proportionately among the New
Hunt Trusts relating to the MHTE, except that (1) such allocations
shall be adjusted to reflect distributions made, assets set aside, and
obligations incurred since the date of death of Margaret Hunt Hill that
are properly attributable to a particular separate share or shares, or (2)
as otherwise provided in the [Settlement] Agreement or in the Final
J udgment in the Margaret Probate Suit (as that term is defined in the
[Settlement] Agreement).

(ROA.Sealed, Dkt. 999 at 7-8 (SROA.28162-63). This language amply
demonstrates the absurdity of Appellees argument that the successor trustees do
not need the books and records of the trust particularly in light of the
undisputed fact that Hill III already unearthed evidence from other sources
showing that certain of the Appellees failed to identify and include trust assets in
the division process. Opening Brief at 22-23.
Second, Appellees cite Hoenig v. Texas Commerce Bank, N.A. for the
proposition that because Hill III has already settled with and released Appellees,
neither he nor the trustees need access to the books and records of the MHTE.
Appellees Brief at 36-37. This argument is incorrect and misconstrues Hoenig.
The successor trustee in Hoenig did not obtain access to the books and records of
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the trust for the purpose of filing suit against the former trustee. Instead, the trust
files were transferred to a new trustee as a routine matter after the new trustee was
appointed by the court, and were intended to assist the successor trustee in
administering the trust. 939 S.W.2d 656, 663 (Tex. App. San Antonio 1996, no
writ.). In fact, the trust files were transferred to the new trustee for use in
administration of the trust notwithstanding the fact that, according the court order
appointing the trustee, the new trustee did [not] have a duty to question the
accounting of . . . the prior fiduciary, and was entitled to rely on that accounting.
Id. at 662. The standard language (see Opening Brief at 25 n.10; (ROA.Sealed,
Dkt. 1267-1 at 223-24 (SROA.31823-24))) permitting the successor trustee to rely
on the prior trustees accounting did not obviate the need for the former trustee to
transfer the trusts files to the successor trustee.
As explained in Section II, above, in this case, the release provisions of the
Settlement Agreement and the Final J udgment (see ROA.Sealed, Dkt. 999 at 26
(SROA.28181)) do not provide that the successor trustees are not entitled to copies
of the records of the trust. While the successor trustees may have no duty to
investigate or sue the former trustees on claims that have been released, that does
not mean they are somehow precluded from accessing, using, and maintaining the
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archives and permanent records of the MHTE in the course of administering the
new Hill III sub-trusts.
5

Third, Appellees object that they should not be compelled to produce
privileged communications to Hill III. Appellees Brief at 38-39. However,
Appellees have not articulated any basis upon which they may assert a privilege
over these documents vis--vis the successor trustees who stand in the shoes of the
former trustees. Compare Respondents Brief at 38-39 (bare assertion that this
situation may be different) with Opening Brief at 28-29 (citing In re Bradley, 501
F.3d 421, 433 (5th Cir. 2007); Huie v. DeShazo, 922 S.W.2d 920, 926 (Tex. 1996)
(an attorney represents the trustee in his capacity as trustee); Interfirst Bank-
Houston, N.A. v. Quintana Petroleum Corp., 699 S.W.2d 864, 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)). As the
party asserting privilege, Appellees bear the burden of demonstrating that the
privilege exists and applies here. See, e.g., Jordan v. Court of Appeals for the
Fourth Supreme Judicial Dist., 701 S.W.2d 644, 648-49 (Tex. 1985) (The burden
of proof to establish the existence of a privilege rests on the one asserting it.).

5
Appellees also argue that the district court properly denied Hill IIIs motion
based on the specter of never-ending trumped up disputes that Hill III might
bring in the future. Appellees Brief at 36, 39. This argument is entirely
speculative and provides no basis to disregard the Articles of Agreement or Texas
law.
2991148
- 19 -

They have not done so. At the very most, this argument might conceivably support
withholding from Hill III selected documents that were previously listed on
privilege logs produced during discovery it is certainly not a basis to refuse to
produce all of the books and records of the trust to the successor trustees.
Fourth, Appellees contend that Hill IIIs Motion to Enforce and Compel
production of the books and records of the MHTE to the successor trustees was
merely a set up for Hill IIIs subsequent motion to recuse the then-presiding
district court judge. This argument is specious, and is entirely unsupported by any
citation to evidence. Although Hill III did later file a motion to recuse the
Honorable Reed OConnor (who subsequently recused himself), Hill IIIs motion
to recuse was not based either exclusively or primarily on his Motion to Enforce
and Compel, but rather on the fact that J udge OConnor had a substantial equity
ownership interest in Exxon Mobil (Exxon), and Exxon in turn had a direct
interest in this action. (ROA.Sealed, Dkt. 1257 at 2 (SROA.31171)).
V. In the Alternative, the District Courts Order Should Be Vacated
Because the District Judge Was Apparently Operating Under an
Undisclosed Conflict.
The district court judges J uly 30, 2013 ruling denying Hill IIIs Motion to
Enforce and Compel is erroneous and should be reversed for the reasons set forth
above and in Hill IIIs Opening Brief. In addition, or in the alternative, the ruling
2991148
- 20 -

at issue should be vacated because J udge Solis was apparently operating under an
undisclosed recusable conflict at the time the order was entered.
It is undisputed that between May 2013, when this case was first assigned to
J udge Solis, and September 2013, when J udge Solis recused himself sua sponte, no
new parties or claims were added to the case. Accordingly, any recusable conflict
that existed in September 2013 almost certainly existed just two months earlier, in
J uly 2013, when J udge Solis entered the order that is the subject of this appeal.
While Appellees dismiss this conclusion as only conjecture (Appellees Brief at
44), the fact is that at a minimum J udge Soliss order would appear to a
reasonable person to have been entered after the district judge should have recused
himself. See Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 864
(1988); Patterson v. Mobil Oil Corp., 335 F.3d 476, 485 (5th Cir. 2003). This is
particularly true given that the order being appealed from was the only substantive
order entered by J udge Solis before he recused himself, and the order at issue uses
unnecessarily harsh and intemperate language directed towards Hill III.
(ROA.18776-77, 18180-81).
Appellees contend that J udge Soliss failure to timely recuse himself was
harmless error because he reached the same result already reached by J udge
OConnor, who denied Hill IIIs Rule 59(e) motion. However, as discussed above,
J udge OConnors March 2011 order on Hill IIIs Rule 59(e) motion dealt with
2991148
- 21 -

different issues than those addressed by J udge Solis. None of the prior orders
cited by Appellees, or by J udge Solis, addressed the rights of the successor trustees
under the Articles of Agreement and Texas law to access the books and records of
the MHTE. See supra Section III.
While this Court should reverse J udge Soliss erroneous order on de novo
review, in the alternative, this Court can simply vacate J udge Soliss order based
on J udge Soliss apparent conflict of interest, and allow the new district court
judge to consider this issue in the first instance. Remanding the matter to the
district court for fresh consideration is especially appropriate here because while
this appeal has been pending, Hill III has filed a new motion in the district court
pursuant to Federal Rule of Civil Procedure 60(b) seeking additional discovery, or
in the alternative to vacate the Settlement Agreement and Final J udgment, in light
of newly discovered evidence indicating that certain of the Appellees made
material misrepresentations of fact to Hill III in connection with the parties
settlement.
6
See Dkt. 1471 Hill v. Hunt, et al., Case No. 3:07-cv-02020-L (N.D.
Tex. filed Mar. 24, 2014).
7

6
Appellees incorrectly contend that Hill III has somehow withdrawn his
requests for relief under Rule 60(b). By requesting that this Court order the former
trustees of the MHTE to produce copies of the books and records of the trust to the
successor trustees, Hill III is not waiving or withdrawing any of his requests for
relief under Rule 60(b).
7
This Court may take judicial notice that Hill III has filed a new 60(b) motion
in the underlying case. The existence of this document can be accurately and
2991148
- 22 -

CONCLUSION
The parties Settlement Agreement provides that the MHTE will be divided
into sub-trusts that will be governed by the 1935 Articles of Agreement. Those
Articles of Agreement provide, among other things, that the trustee shall maintain
archives and permanent records of the trust, and that successor trustees shall
have the same rights and obligations as former trustees. It is therefore clear that
the successor trustees are entitled to copies of the archives and permanent
records of the MHTE, and nothing in either the Settlement Agreement or the Final
J udgment provides otherwise. The district court erred when it concluded that the
successor trustees of the sub-trusts of which Hill III is a beneficiary are not entitled
to copies of the MHTEs records, and the district court judge was apparently
operating under a recusable conflict at the time the erroneous order was entered.
Accordingly, the district courts order should be reversed, or in the alternative
should be vacated and remanded for consideration by the new district court judge.

Respectfully submitted,

/s/ Iian D. Jablon (w/p AKW)
Iian D. J ablon

readily determined from the federal docket associated with that case. See Fed. R.
Evid. 201; Taylor v. Charter Med. Corp., 162 F.3d 827, 830 (5th Cir.1998) (a court
may take judicial notice of a document filed in another court . . . to establish the
fact of such litigation and related filings). A true and correct copy of Hill IIIs
new 60(b) motion is attached hereto as Exhibit A.
2991148
- 23 -

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
2991148
- 24 -

CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limitations of Federal Rule
of Appellate Procedure 32(a)(7)(B) because this brief contains 5448 words,
excluding the parts of the brief exempted by Federal Rule of Appellate Procedure
32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Federal Rule of
Appellate Procedure 32(a)(5) and the type-style requirements of Federal Rule of
Appellate Procedure 32(a)(6) because this brief has been prepared in a
proportionally spaced typeface using Microsoft
Office Word 2007 in 14-Point

Times New Roman font.

Date: March 31, 2014 /s/ Aarti K. Wilson
Aarti K. Wilson
2991148
- 25 -

CERTIFICATION
1. The electronic submission is an exact copy of the paper document, 5th
Cir. R. 25.2.1; and,
2. The document has been scanned for viruses with the most recent
version of a commercial virus scanning program and is free of viruses.

Date: March 31, 2014 /s/ Aarti K. Wilson
Aarti K. Wilson
2991148
- 26 -

CERTIFICATE OF SERVICE
I certify that the foregoing Reply Brief of the Appellant was filed with the
Court via the courts electronic filing system on the 31st day of March 2014, and
an electronic copy of the Brief of the Appellant was served on all counsel of
record, as listed below, via the courts electronic filing system on the same date:
Carrie L. Huff
HAYNES & BOONE LLP
2323 Victory Avenue, Suite 700
Dallas, Texas 75219

Attorneys for Defendant
William Schilling

Harry M. Reasoner
VINSON & ELKINS LLP
1001 Fannin Street, Suite 2500
Houston, Texas 77002

Attorneys for Defendant Ivan Irwin, Jr.
Michael L. Raiff
GIBSON DUNN & CRUTCHER LLP
2100 McKinney Avenue, Suite 1100
Dallas, Texas 75201

J . Keith Benedict
A G HILL PARTNERS LLC
1601 Elm Street, Suite 5000
Dallas, Texas 75201

Albert G. Hill, Jr.

Donald E. Godwin
Bruce W. Bowman, J r.
Shawn McCaskill
Israel R. Silvas
Robert J . McGuire
W. Ira Bowman
GODWIN RONQUILLO PC
1201 Elm Street, Suite 1700
Dallas, Texas 75270

Alinda H. Wikert
Frank N. Ikard, J r.
IKARD GOLDEN, PC
400 West 15th Street, Suite 975
Austin, Texas 78701

Kirk Todd Florence
J ennifer L. Graf
CROUCH & RAMEY, L.L.P.
2001 Ross Avenue, Suite 4400
Stephen D. Susman
SUSMAN GODFREY, LLP
First Interstate Plaza
1000 Louisiana Street, Suite 1500
Houston, Texas 77002

Carrie L. Huff
HAYNES & BOONE, LLP
2323 Victory Avenue, Suite 700
2991148
- 27 -

Dallas, TX 75202
Attorneys for Defendant Lyda Hill

Dallas, Texas 75219

Attorneys for Defendants Brett Ringle
and Margaret Keliher

B. Patrick Shaw
WOODWARD & SHAW
4849 Greenville Avenue, Suite 1111
Dallas, Texas 75206

Attorney for Defendant
William Herbert Hunt

Stewart H. Thomas
Tom M. Dees, III
HALLETT & PERRIN, PC
2001 Bryan Street, Suite 3900
Dallas, Texas 75201

Attorneys for Defendants
Heather V. Washburne and Elisa M.
Summers

Thomas C. Wright
Howard Louis Close
Patrick Boone McAndrew
Kathleen Sheila Rose
WRIGHT & CLOSE L.L.P.
1 Riverway, Suite 2200
Houston, TX 77056
Attorneys for Intervenor Campbell
Harrison & Dagley, L.L.P.
Thomas C. Wright
Howard Louis Close
Patrick Boone McAndrew
Kathleen Sheila Rose
WRIGHT & CLOSE L.L.P.
1 Riverway, Suite 2200
Houston, TX 77056

Attorneys for Intervenor Calloway,
Norris, Burdette & Weber, P.L.L.C

/s/ Aarti K. Wilson
Aarti K. Wilson


Ex. A
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

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
Estate,
Civil No. 3:07-CV-02020-L
Plaintiff,

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.

PLAINTIFF ALBERT G. HILL IIIS MOTION FOR LEAVE OF COURT TO
FILE AN EMERGENCYMOTION FOR RELIEF PURSUANT TO FEDERAL
RULE OF CIVIL PROCEDURE 60(b) BASED ON NEW TESTIMONY BY
FORMER IRS ATTORNEY CYNTHIA CAMUEL

Case 3:07-cv-02020-L-BK Document 1471 Filed 03/24/14 Page 1 of 4 PageID 36968

Page 2 of 4

To the Honorable United States District J udge Lindsay:
1. Plaintiff ALBERT G. HILL III (Hill III) respectfully moves for leave of court
to file the attached EMERGENCY MOTION FOR RELIEF PURSUANT TO FEDERAL RULE
OF CIVIL PROCEDURE 60(b) BASED ON NEW TESTIMONY BY FORMER IRS ATTORNEY
CYNTHIA CAMUEL, in which he seeks an order pursuant to Federal Rule of Civil Procedure
60(b) permitting him to take discovery relating to the existence of a disclaimer in favor of Hill
III with respect to the Haroldson L. Hunt J r. Trust Estate (HLHJ rTE).
1

2. In the alternative, Hill III moves for leave of court to file the attached
EMERGENCY MOTION for an order vacating the Global Settlement Agreement (ECF 879) and
the Courts Final J udgment (ECF 999) on the basis of new evidence in the form of sworn
deposition testimony by a former IRS attorney showing that Hill IIIs opponents may have
perpetrated a fraud on the Court when they repeatedly represented to the Court and to Hill III
that: (1) Hill III had no interest in the HLHJ rTE, and (2) that no disclaimers existed with respect
to the HLHJ rTE.
Conclusion and Prayer for Relief

Hill III respectfully requests that as described in the attached EMERGENCY MOTION, he
be given leave of court to conduct limited additional discovery in order to obtain further
evidence pertaining to the apparent fraud. In the alternative, Hill III respectfully requests that he
be given leave such that the Court may find that Ms. Camuels sworn testimony concerning Hill
J r. signing a disclaimer of his interests in the HLHJ rTE to be true, find that a fraud has been

1
The HLHJ rTE has sometimes been referred to in other pleadings in this action, including the
parties Global Settlement Agreement (ECF No. 879), as the HHTE.


Page 3 of 4

perpetrated on the Court, and vacate both the Settlement Agreement and Final J udgment in this
matter.

Respectfully submitted,

Leonard Thomas (Butch) Bradt
5151 San Felipe Street Suite 1950
Houston, TX 77056-4151
Phone: 713-255-3232
Fax: 713-255-3242
ltbradt@flash.net
Texas Bar #02841600
Lead Counsel of Record for Albert G. Hill III

Michael Mowla
445 E. FM 1382 #3-718
Cedar Hill, TX 75104
Phone: 972-795-2401
Fax: 972-692-6636
michael@mowlalaw.com
Texas Bar #24048680
Attorney for Albert G. Hill III

/s/ Michael Mowla

By: Michael Mowla

Certificate of Conference

This certifies that on March 24, 2014, I conferred with all of the opposing counsels of
record via email as to whether they agree with or oppose this motion. Lawrence Fischman
indicated that he has no objection to this motion. All of the following attorneys indicate that they
oppose this motion: Patrick McAndrew for CHD, Michael Raiff for Mr. Hill J r., Bill Sims for
Ivan Irwin J r., Tom Dees for Washburne and Summers, Carrie Huff for the Trust Defendants,
and Michael Hurst as the ad litem. I received no response from the other attorneys of record or
they could not object or agree.

/s/ Michael Mowla

By: Michael Mowla


Page 4 of 4

Certificate of Service
This is to certify that on March 24, 2014, this document was filed using the ECF system,
which automatically sends notice of electronic filing to the attorneys of record who have
consented to accept such notice.

/s/ Michael Mowla

By: Michael Mowla

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

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
Estate, and derivatively on behalf of the
Estate,
Civil No. 3:07-CV-02020-L
Plaintiff,

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.

PLAINTIFF ALBERT G. HILL IIIS EMERGENCYMOTION FOR RELIEF
PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 60(b) BASED ON
NEW TESTIMONY BY FORMER IRS ATTORNEY CYNTHIA CAMUEL

Case 3:07-cv-02020-L-BK Document 1471-1 Filed 03/24/14 Page 1 of 26 PageID 36972

Page 2 of 26

Table of Contents

Table of Contents .......................................................................................................................... 2

Appendix Index .............................................................................................................................. 3

Index of Authorities ...................................................................................................................... 4

Introduction ................................................................................................................................... 6

Factual Background ...................................................................................................................... 9

Defendants attempt to rescind disclaimers relating to the MHTE, and
deny the existence of disclaimers relating to the HLHJ rTE ............................................. 9

The Settlement Agreement ............................................................................................. 13

New evidence of an HLHJ rTE Disclaimer ..................................................................... 14

Argument .................................................................................................................................... 15

Rule 60(b) provides a basis for relief when fraud has
been committed on the Court .......................................................................................... 15

Hill III exercised due diligence ....................................................................................... 16

Hill J r., Lyda Hill, and Wikert defrauded Hill III and committed
fraud upon the Court ....................................................................................................... 19

Hill III is entitled to discovery, or, in the alternative, relief from the final
J udgment pursuant to Rule 60(b) based on Ms. Camuels new testimony ..................... 21

Conclusion and Prayer for Relief ................................................................................................ 25

Certificate of Conference ............................................................................................................ 26

Certificate of Service ................................................................................................................... 26


Page 3 of 26

Appendix Index

Unsworn Declaration of Albert Hill, III ............................................................................ Exhibit 1

Deposition of IRS Attorney Cynthia Camuel .................................................................... Exhibit 2

Answer of Hill J r. to Trustees Motion for Summary J udgment ....................................... Exhibit 3

Trustees Motion for Summary J udgment as to Petitioners Lack of Standing ................. Exhibit 4

Order Sustaining Trustees Motion for Summary J udgment ............................................. Exhibit 5

Alinda Wikerts Response to Hill IIIs First Combined Request for Production .............. Exhibit 6

Lyda Hills Response to Request for Production by Hill III ............................................. Exhibit 7

Hill J r.s Objections and Responses to Hill IIIs Request for Production ......................... Exhibit 8

Deposition Excerpt of Alinda Wikert ................................................................................ Exhibit 9

Deposition of Lyda Hill ................................................................................................... Exhibit 10

Exhibit CC31 to Deposition of IRS Attorney Cynthia Camuel ....................................... Exhibit 11


Page 4 of 26

Index of Authorities

Cases

Ali v. Reno, 22 F.3d 442 (2d Cir. 1994) ...................................................................................... 23

All Freight Sys. v. James, 115 F. Appx 182 (5th Cir. 2004) ..................................................... 21

Apotex Corp. v. Merck & Co., Inc., 507 F.3d 1357 (Fed. Cir. 2007) ......................................... 20

Ernst & Young, L.L.P. v. Pacific Mutual Life Ins. Co., 51 S.W.3d 573 (Tex. 2001) ................. 20

Gevinson v. Manhattan Construction Co. of Oklahoma, 449 S.W.2d 458 (Tex. 1969) ............. 23

Harrell v. DCS Equip. Leasing Corp., 951 F.2d 1453 (5th Cir. 1992) ....................................... 15

In re Velasquez, 19 I & N Dec. 377 (B.I.A. 1986) ..................................................................... 23

Inter Financing Exchange v. Bartlett & Co., 659 F.2d 1320 (5th Cir. 1981) ............................. 16

Jackson v. Thaler, 348 F. Appx 29 (5th Cir. 2009) ................................................................... 21

Kinnison v. Humana Health Plan of Tex., Inc., 2007 U.S. Dist. LEXIS 41868,
at *5 (S.D. Tex. J une 8, 2007) .................................................................................................... 15

Mendoza v. Fidelity & Guaranty Ins. Underwriters, Inc., 606 S.W.2d 692 (Tex. 1980) ............ 23

MMAR Group, Inc. v. Dow Jones & Co., 187 F.R.D. 282 (S.D. Tex. 1999) ............................. 23

Nekolny v Painter, 653 F.2d 1164 (7th Cir. 1981) ...................................................................... 23

Rozier v. Ford Motor Co., 573 F.2d 1332 (5th Cir. 1978) .......................................................... 20

Seven Elves, Inc. v. Eskenazi, 635 F.2d 396 (5th Cir. 1981) ...................................................... 16

Smith v. Waterman Steamship Co., 31 F. Appx 832 (5th Cir. 2002) ......................................... 21

Trenholm v. Ratcliff, 646 S.W.2d 927 (Tex. 1983) ..................................................................... 20

United States v. 329.73 Acres of Land, 695 F.2d 922 (5th Cir. 1983) ........................................ 16

United States v. City of New Orleans, 731 F.3d 434, 442 (5th Cir. 2013) ................................. 16

Wilson v. Jones, 45 S.W.2d 572 (Tex. Comm. App. 1932) ........................................................ 20


Page 5 of 26

Statutes and Rules

Fed. Rule Civ. Proc. 60(b) ................................................................................................... passim

Fed. Rule Evid. 801 ................................................................................................................ 22-23


Page 6 of 26

To the Honorable United States District J udge Lindsay:
Plaintiff ALBERT G. HILL III (Hill III) respectfully moves for an order pursuant to
Federal Rule of Civil Procedure 60(b) permitting Hill III to take discovery relating to the
existence of a disclaimer in favor of Hill III with respect to the Haroldson L. Hunt J r. Trust
Estate (HLHJ rTE).
1
In the alternative, Hill III moves for an order vacating the Global
Settlement Agreement (ECF 879) and the Courts Final J udgment (ECF 999) on the basis of new
evidence in the form of sworn deposition testimony by a former IRS attorney showing that Hill
IIIs opponents perpetrated a fraud on the Court when they repeatedly represented to the Court
and to Hill III that: (1) Hill III had no interest in the HLHJ rTE, and (2) that no disclaimers
existed with respect to the HLHJ rTE.
Introduction

1. In 1935, Hill IIIs great-grandfather H.L. Hunt established separate trusts for the
benefit of his daughter Margaret Hunt (Hill IIIs grandmother) and his son H.L. Hunt, J r.
(Hassie). Hassie died in 2005. In his Will, he exercised his power to appoint his interest in the
HLHJ rTE to the descendants of his sister Margaret, who was then still alive, per stirpes. At that
time, the HLHJ rTE had assets worth approximately $1 billion. Margaret Hunt died in 2007, at
which time the trust that had been established for her benefit in 1935 (the Margaret Hunt Trust
Estate, or MHTE) had assets exceeding $1 billion.
2. This litigation was commenced in 2007 when Hill IIIs father, Albert G. Hill, J r.
(Hill J r.
2
) attempted to rescind two separate irrevocable disclaimers he had signed in favor of
Hill III relating to the MHTE. Those disclaimers provided that when Margaret Hunt died, a

1
The HLHJ rTE has sometimes been referred to in other pleadings in this action, including the
parties Global Settlement Agreement (ECF No. 879), as the HHTE.

2
Hill J r. is sometimes referred to in pleadings as Al J r.. Hill III is sometimes referred to as Al
III.

Page 7 of 26

portion of her interest in the MHTE that would otherwise have gone to Hill J r. would instead go
directly to Hill J r.s children, including Hill III.
3. Hill J r. claimed in this litigation that the two disclaimers he signed were invalid
because he had purportedly been incompetent at the time he executed them. Hill III contended
that the disclaimers signed by Hill J r. with respect to the MHTE were valid and enforceable. Hill
III also contended that he had a vested interest in the HLHJ rTE. In response, Hill IIIs
opponents repeatedly represented both to the Court and to Hill III that Hill III has no interest
whatsoever in the HLHJ rTE, and that no disclaimer had ever been signed with respect to the
HLHJ rTE. In reliance on these material representations, Hill III ultimately agreed to settle this
action and related state court lawsuits in May 2010. The terms of the settlement included Hill J r.
ratifying the disclaimer he had signed in favor of Hill III with respect to the MHTE, and Hill III
agreeing that he had no current interest in the HLHJ rTE. (ECF 879).
4. After the settlement in this matter, Hill III filed a separate litigation against the
Internal Revenue Service concerning whether Hill III is entitled to an award for providing
information that resulted in the IRS collecting over $100 million in additional taxes from the
HLHJ rTE. In connection with that litigation, on February 27, 2014, Hill IIIs counsel took the
deposition of Cynthia Camuel, a former IRS attorney who had been in charge of auditing
Hassies Estate. At her deposition, Ms. Camuel testified several times that representatives of
Hassies Estate had told her in 2008 that Hill J r. had signed a disclaimer of all or part of his
interest in the in Hassies trust. (emphasis added). This new testimony indicates that Hill
IIIs opponents perpetrated a $100+million fraud on the Court and on Hill III when they
repeatedly represented that Hill III had no interest in the HLHJ rTE, and that no disclaimers had
been signed with respect to that trust.

Page 8 of 26

5. In light of this stunning new evidence, Hill III now respectfully requests that the
Court grant him leave to take limited additional discovery from Defendants and their agents with
respect to the discrete issue of whether any of defendants signed a disclaimer relating to the
HLHJ rTE. These defendants or agents include: (1) William Mureiko and Emily Parker, the
attorneys who told Ms. Camuel about Hill J r.s HLHJ rTE disclaimer, (2) Albert G. Hill, J r. (who,
according to Ms. Camuel, signed the disclaimer), (3) Lyda Hill (who previously claimed there
were no disclaimers signed relating to the HLHJ rTE), (4) Alinda Wikert (who previously
claimed there were no disclaimers signed relating to the HLHJ rTE), (5) Ivan Irwin, J r. (Hill J r.s
confidante, who likely has knowledge concerned the disclaimer), (6) Heather Washburne and
Elisa Summers (Hill IIIs sisters, who would likely also benefit from an HLHJ rTE disclaimer
and who likely would have had discussions with their father about this issue), (7) J ohn W.
Creecy, then the president and chief executive officer of Hunt Petroleum Corporation, and
HLHJ rTE trustee; (8) several lawyers at Haynes & Boone and J ones Day, (9) Patrick Shaw of
the law firm Woodard and Shaw, (10) Stephen Sands, who as a former MHTE & HHTE advisory
board member, may have detailed knowledge of disclaimers signed by the defendants; (11) Ellen
Flowers, who as a former MHTE & HHTE advisory board member and executor of Hassie
Hunts estate, may also have detailed knowledge of disclaimers signed by the defendants.
6. Alternatively, Hill requests that the Court simply find that Ms. Camuels
testimony establishes that a fraud has been committed on the Court and on Hill III, and enter an
order vacating the parties Settlement Agreement and the Final J udgment in this matter so that
Hill III may pursue his claim that he has a vested interest in the HLHJ rTE.


Page 9 of 26

Factual Background

Defendants attempt to rescind disclaimers relating to the MHTE, and
deny the existence of disclaimers relating to the HLHJrTE

7. In 1935, H.L. Hunt established irrevocable trusts for six of his children, including
Margaret Hunt Hill, the original beneficiary of the Margaret Hunt Trust Estate (MHTE), and
Hassie Lafayette Hunt J r., the original beneficiary of the Haroldson Hunt Trust Estate
(HLHJ rTE).
8. Upon Hassies death in 2005 and Margarets death in 2007, Margarets three
children became current beneficiaries of both the HLHJ rTE and the MHTE. The three children
are defendants Albert G. Hill J r. (Hill J r.), Lyda Hill, and Alinda Wikert.
9. On March 22, 2005, while Margaret was still alive, Hill J r. executed an
irrevocable disclaimer of most of his interests in the MHTE in favor of his children. See ECF
286-3. The effect of Hill J r.s disclaimer was that when Margaret died, Hill J r.s children
(including Hill III) would become current beneficiaries of the MHTE, with the right to receive
discretionary distributions of trust income for 21 years after Margarets death and then, assuming
they were still alive, the distribution of trust corpus upon termination of the trust. Hill J r.
subsequently caused an updated disclaimer to be created in 2007 that reaffirmed the original
March 2005 disclaimer, but which included certain revisions that were intended to avoid drawing
IRS scrutiny to a tax fraud that was simultaneously being perpetrated by certain Defendants with
respect to the HLHJ rTE. ECF 590.
10. Specifically, after Hassies death in 2005, Hassies Estate attempted to conceal
from the IRS the fact that Hassie had exercised a general power of appointment over the
HLHJ rTE by devising his interest to Margarets descendants in his Will. ECF 637 at 403 and
406. The exercise of a general power of appointment constituted a taxable event which, if

Page 10 of 26

disclosed to the IRS, would have required Hassies Estate to pay in excess of $100 million in
additional taxes that Hill IIIs family intended to avoid. However, Hill J r.s original 2005
disclaimer explicitly stated that Hill J r. was exercising a general power of appointment with
respect to the MHTE. Since the MHTEs trust instrument is identical to the HLHJ rTEs trust
instrument, Hill J r.s reference to a general power was directly contrary to the position that the
family was taking in connection with the HLHJ rTE. Hill J r.s updated 2007 disclaimer (which
bore a March 2005 date) removed all reference to a general power of appointment, with the
hope that the HLHJ rTE might get under the radar screen of the IRS. ECF 616.
11. Soon after Margarets death, a dispute arose between Hills family and Hill III,
and then Hill J r. filed an action in state court seeking to declare invalid the irrevocable
disclaimers that made Hill III and his siblings current beneficiaries of the MHTE. Specifically,
Hill J r. asserted that he had been incompetent at the time he signed the original MHTE
disclaimer in 2005. See ECF 532, minute entry & Transcripts from February 10, 2010
proceedings.
12. On November 8, 2007, Hill III filed a separate suit against Defendants in the 14th
J udicial District of Dallas County, alleging violations of the federal Racketeer Influenced and
Corrupt Organizations Act (RICO), fraud, breach of fiduciary duty, aiding and abetting breach of
fiduciary duty, and civil conspiracy in conjunction with the management of the MHTE and the
HLHJ rTE. See ECF 558 & 611. Hill IIIs suit sought various forms of relief, including a
declaration of his beneficiary status as to the MHTE and the HLHJ rTE, along with injunctive
relief requiring certain of the defendants to make available trust documents that he was entitled
to review by virtue of his beneficiary status. Id.

Page 11 of 26

13. Defendants removed the case to the United States District Court for the Northern
District of Texas on the ground that Hill IIIs RICO claim presented a federal question. ECF 1.
Thereafter, the parties engaged in nearly two-and-a-half years of litigation both in this action, as
well as in more than 20 separate related state court proceedings.
14. A key issue in this action was whether the MHTE disclaimers signed by Hill J r.
were valid and enforceable. On September 3, 2009, Hill III filed a motion for partial summary
judgment as to whether he was a current beneficiary of the MHTE by virtue of Hill J r.s
execution of the two virtually identical irrevocable disclaimers the first from 2005 and the
updated disclaimer from 2007. ECF 286. Hill J r. opposed Hill IIIs motion, and submitted his
own affidavit and an affidavit from J oyce Waller, an employee of Hill J r., falsely attesting that
both disclaimers were executed on March 22, 2005. ECF 379 at App. 1-36, 56-58). Hill J r.
further asserted that he had been incapacitated in 2005, and therefore was not competent to sign a
valid disclaimer at that time. ECF 378. J udge Reed OConnor found that Hill J r.s submissions
created a genuine issue of material fact as to whether the disclaimers were valid, and therefore
denied Hill IIIs motion. ECF 423.
15. After the Court denied Hill IIIs motion for summary judgment, Hill III submitted
new evidence including deposition testimony from Hill J r.s longtime confidante Ivan Irwin, J r.
that had been obtained literally moments before Hill IIIs motion for summary judgment was
denied in December 2009 demonstrating that the updated disclaimer had indeed been created in
2007, and that Hill J r. had caused it be affixed to the signature page from a draft signed and
executed in 2005 to create the false appearance that the document had been signed and executed
in 2005. ECF 440. Given this evidence of fraud that Hill III had uncovered, and after an
evidentiary hearing in which Hill J r. testified, in February 2010, J udge OConnor sanctioned Hill

Page 12 of 26

J r. for submitting summary judgment materials in bad faith and with the intent of committing
fraud on the Court, and for intentionally [lying] under oath. ECF Nos. 541, 576. J udge
OConnor also set a trial date of April 2010, which was subsequently moved to May 2010, for
determining the validity of the disclaimers signed by Hill J r. ECF Nos. 630, 781.
16. Another key issue in this action was what rights, if any, Hill III had with respect
to the HLHJ rTE. Hill III believed that Hill J r. had also signed a disclaimer in favor of his
children with respect to the HLHJ rTE. ECF 636, n.20. Since the HLHJ rTE had approximately
$1 billion in assets at the time of Hassies death in 2005, a disclaimer in favor of Hill III would
potentially have been worth $100 million or more to Hill III and his children. See Exhibit 2,
Deposition of Camuel, p. 190.
17. However, Defendants repeatedly and vociferously represented to the Court and
to Hill III, and to other courts that Hill III had no interest whatsoever in the HLHJ rTE, and that
no disclaimers existed with respect to the HLHJ rTE. For example, in a document entitled
Answer of Albert G. Hill, Jr. to Trustees Motion for Summary Judgment that Hill J r. filed on
March 24, 2009 with the Dallas Probate Court, Hill J r. specifically stated, There is nothing to
indicate that (Hill III) will ever rise to the status of beneficiary, per stirpes of Margaret Hunt
Hill. See Exhibit 3, p. 1. In the quoted sentence, Hill J r. specifically underlined the word
ever. Id. Then in the same document, on the second page, Hill J r. stated, Petitioner (Hill III)
was intentionally omitted from any benefits of the (HLHJ rTE), and will never rise to the status
of being a beneficiary of said (HLHJrTE). See Exhibit 3, p. 2 (emphasis added).
18. Then on J uly 2, 2009, J ohn Creecy, the then-Trustee of the HLHJ rTE, filed a
motion for summary judgment in the Dallas Probate Court, alleging that Hill III did not have
standing regarding the HLHJ rTE. See Exhibit 4, Trustees Motion for Summary Judgment as to

Page 13 of 26

(Hill III) Lack of Standing Regarding (the HLHJrTE). Creecy alleged that Hill III was not an
interested person as to the HLHJ rTE because Hill III was not: (1) a current beneficiary of the
HLHJ rTE; (2) a vested remainder beneficiary of the HLHJ rTE; (3) a beneficiary of the HLHJ rTE
at all; and, in fact, has no interest in the HLHJ rTE whatsoever. See Exhibit 4, p. 1.
19. On August 18, 2009, the Dallas Probate Court sustained Creecys Motion for
Summary J udgment, finding and ordering that Hill III has no standing with respect to the
HLHJ rTE. See Exhibit 5, Order Sustaining Trustees Motion for Summary Judgment as to (Hill
III) Lack of Standing. Thus, based upon Defendants representations, the Dallas Probate Court
dismissed Hill IIIs claims relating to the HLHJ rTE on the basis that he purportedly lacked
standing because he was not a beneficiary of the trust. Id.
The Settlement Agreement

20. In late April 2010, shortly before the scheduled trial date on the validity of Hill
J r.s MHTE disclaimers, J udge OConnor requested and was granted an ex parte meeting with
Hill III and his wife, Erin Hill outside the presence of their attorneys. During that meeting,
J udge OConnor stated to Hill III and Erin Hill that he intended to indefinitely stay Hill IIIs
claims unless a settlement was promptly reached.
21. At that point, the litigation had already been pending for over two-and-a-half
years. Most of Hill IIIs claims relating to the HLHJ rTE had recently been dismissed by the
Dallas Probate Court based upon Defendants representations that he had no interest in that trust.
Hill III was thus placed under enormous pressure to settle rather than have all of his remaining
claims stayed indefinitely and, on or about May 5, 2010, shortly after his meeting with J udge
OConnor, Hill III agreed to settle the litigation. See Docket in No. 3:07-CV-02020-P, 5/5/2010
Electronic Minute Entry. In general, the settlement provided that Hill J r. would affirm the 2005

Page 14 of 26

disclaimer he had signed with respect to the MHTE, but that Hill III would relinquish his claims
that he was a current beneficiary of the HLHJ rTE. The settlement was thereafter documented in
a Settlement Agreement that was signed on or about May 13, 2010. ECF 879.
22. Critical to Hill IIIs decision to settle the case were Defendants oft-repeated
representations that Hill III had no interest whatsoever in the HLHJ rTE and that no disclaimers
had ever been signed with respect to that trust. See Exhibit 1, Unsworn Declaration of (Hill III),
4. Obviously, if Hill III had known that Hill J r. had signed a disclaimer in Hill IIIs favor
relating to the HLHJ rTE, that fact would have had a very material impact on Hill IIIs decision to
waive his rights with respect to that trust, which had approximately $1 billion in assets. See
Exhibit 1, Unsworn Declaration of (Hill III), 5-8.
New evidence of an HLHJrTE Disclaimer

23. As noted above, Hill III believes that certain members of his family took actions
that were designed to evade taxes that were owed by Hassies Estate relating to the HLHJ rTE.
Hill III provided information concerning that alleged tax fraud to the IRS in early 2008, and the
IRS subsequently recovered more than $100 million in additional taxes from Hassies Estate
relating to the HLHJ rTE based upon the IRSs determination that the HLHJ rTE was part of
Hassies Estate due to the fact that Hassie had exercised his power of appointment over the
HLHJ rTE in his Will. Hill III is presently in litigation with the IRS concerning whether
information he provided assisted or led to the collection of those additional taxes, or whether the
IRS learned of the Estates attempted fraud from other sources (the Whistleblower Action).
See Exhibit 2, Deposition of Camuel, p. 241.
24. In connection with the Whistleblower Action, on February 27, 2014, Hill IIIs
counsel took the deposition of retired IRS attorney Cynthia Camuel. Ms. Camuel was the IRS

Page 15 of 26

representative in charge of the audit of Hassies Estate. See Exhibit 2, Deposition of Camuel, p.
11. Ms. Camuel testified that she met with representatives of Hassies Estate in 2008, and that
they told her that Al Jr. had signed a disclaimer of all or part of his interest in the in
Hassies trust, but that that disclaimer was the subject of litigation and was unresolved. See
Exhibit 2, p. 171, 259. (emphasis added). Specifically, Ms. Camuel testified that this
information was provided to her in 2008 by attorneys William Mureiko and Emily Parker of the
law firm Thompson & Knight, who were then representing Tom Hunt, the executor of Hassies
estate (including the HLHJ rTE). See Exhibit 2, p. 259-260. At that time, Tom Hunt was a
defendant in this action, including in his capacities as both the executor of Hassies estate and the
Trustee of the HLHJ rTE.
3
See Exhibit 2, p. 25.
Argument

Rule 60(b) Provides A Basis For Relief When Fraud Has Been Committed On the Court

25. Under Federal Rule of Civil Procedure 60(b), a district court maintains the
discretion to relieve a party . . . from a final judgment where justice so requires. Fed. Rule
Civ. Proc. 60(b). In addition to the five enumerated bases for relief under Rule 60(b)(1)-(5),
Rule 60(b)(6) is a grand reservoir of equitable power to do justice in a particular case when
relief is not warranted by the preceding clauses. Harrell v. DCS Equip. Leasing Corp., 951
F.2d 1453, 1458 (5th Cir. 1992); see also Kinnison v. Humana Health Plan of Tex., Inc., 2007
U.S. Dist. LEXIS 41868, at *5 (S.D. Tex. J une 8, 2007) (Rule 60(b)(6) gives district courts the
authority to vacate judgments whenever that action is appropriate to accomplish justice.).
26. A party moving for relief from judgment on the ground of fraud must establish (1)
that the adverse party engaged in fraud or other misconduct, and (2) that this misconduct

3
Tom Hunt died during the pendency of this action. William Herbert Hunt, the Executor of Tom
Hunts Estate, was then added as a party in Tom Hunts place.

Page 16 of 26

prevented the moving party from fully and fairly presenting his case. A party moving for relief
from a judgment on the ground of misconduct has the burden of proving the misconduct by clear
and convincing evidence. And the rule providing for relief from a judgment on ground of
misconduct does not require that the information withheld be such that it can alter the outcome of
the case; the rule is aimed at judgments which were unfairly obtained, not at those which are
factually incorrect. United States v. City of New Orleans, 731 F.3d 434, 442 (5th Cir. 2013).
Hill III exercised due diligence
27. Further, this Court is empowered to grant the relief requested because Hill III
could not have discovered and presented this evidence at trial through the exercise of due
diligence. See Fed. Rule Civ. Proc. 60(b)(2) & (6); Inter Financing Exchange v. Bartlett & Co.,
659 F.2d 1320, 1321 (5th Cir.1981); Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 401-402 n. 3
(5th Cir. 1981), United States v. 329.73 Acres of Land, 695 F.2d 922, 926 (5th Cir. 1983). It is
implausible to conclude that Hill III could have discovered that the opposing parties had lied
about the existence of the disclaimer both to Hill III and this Court. And in fact, as explained
more fully below, Hill III did everything he could to discover the existence of the disclaimer on
the HLHJ rTE, but he was sand-bagged and told that no such disclaimer exists.
28. Hill III has raised the issue of disclaimers on the HLHJ rTE numerous times,
including in a Motion for In Camera Review of Materials Allegedly Protected by the Attorney
Client Privilege filed by Hill III on March 24, 2010. In that motion, Hill III noted that he was
concerned that there may have been other disclaimers executed (and destroyed) related not only
to the MHTE, but also to the HLHJ rTE. See ECF 636, p. 9-10, note 20. Hill III pointed out that
his sister, defendant Heather Washburne stated in her deposition that disclaimers were referenced
in her prenuptial agreement and that Hill J r. has stridently opposed (Hill IIIs) effort to obtain

Page 17 of 26

Al J r.s allegedly sealed divorce file that contains financial information. Despite the state court
finding that the divorce file is not sealed, Al, J r.s counsel appealed the issue to the Texas Fifth
Court of Appeals where it remains pending. See ECF 636, p. 9-10, note 20
29. When Hill III asked defendant Alinda Wikert for All copies, including drafts, of
any will, codicil, trust agreement, disclaimer(s) or other documents(s) in your possession
pertaining to the HHTE, MHTE, or any Defendants, Wikert made a number of objections,
represented that she would produce the documents, but produced no documents related to a
disclaimer on the HLHJ rTE. See Exhibit 6, Alinda Wikerts Response to (Hill IIIs) First
Combined Request for Production to all Defendants, p. 4-5 (emphasis added). And when Hill III
asked Wikert for All documents evidencing any disclaimers, drafts of disclaimers,
correspondences regarding executed or contemplated disclaimers, and revocations of
disclaimers by Wikert, Alinda Wikert, William Herbert Hunt, Heather Washburne, Elisa
Summers, and/or Albert G. Hill, J r. related to any trust, Wikert again made a number of
objections, represented that she would produce the documents, but produced no documents
related to a disclaimer on the HLHJ rTE. See Exhibit 6, p. 6-7.
30. Likewise, when Hill III asked Wikert for All documents evidencing any
disclaimers, drafts of disclaimers, correspondences regarding executed or contemplated
disclaimers, and revocations of disclaimers by Wikert, Alinda Wikert, William Herbert Hunt,
Heather Washburne, Elisa Summers, and/or Albert G. Hill, J r. related to HHTE, Wikert again
made a number of objections, represented that she would produce the documents, but produced
no documents related to a disclaimer on the HLHJ rTE. See Exhibit 6, p. 7-8.
31. To the same requests for production made by Hill III on defendant Lyda Hill, she
responded in the same manner as Wikert. See Exhibit 7, Lyda Hills Response to Request for

Page 18 of 26

Production by Plaintiff (Hill IIIs) First Combined Request for Production to all Defendants,
p. 5-7. Lyda Hill made a number of objections, represented that she would produce the
documents, but produced no documents related to a disclaimer on the HLHJ rTE. See Exhibit 7,
p. 5-7.
32. And as to the same requests for production made by Hill III on defendant Hill J r.,
he responded in the same manner as Wikert and Lyda Hill. See Exhibit 8, Albert Hill, Jr.s
Objections and Responses to Plaintiffs First Combined Request for Production, p. 5-6. Hill J r.
made a number of objections, represented that he would produce the documents, but produced no
documents related to a disclaimer on the HLHJ rTE. See Exhibit 8, p. 5-6.
33. In a deposition dated October 13, 2009, when asked whether in 2005 she saw
even a draft of disclaimers on the HLHJ rTE, defendant Wikert replied that she had not. Wikert
also asserted that she had no information regarding whether any person was preparing draft
disclaimers. See Exhibit 9, excerpts from the Oral and Videotaped Deposition of Alinda Wikert,
p. 133-134.
34. And in a deposition, dated December 17, 2009, when asked about the subject of
disclaimers, defendant Lyda Hill testified that Ive never signed a disclaimer and that she had
tore up a draft disclaimer because she had no intention of paying any taxes resulting from a
disclaimer. See Exhibit 10, Oral and Videotaped Deposition of Lyda Hill, p. 150-153.
35. In addition, as discussed above, Hill J r. and other Defendants affirmatively
represented to the Court that Hill III had no interest whatsoever in the HLHJ rTE, a representation
that is dependent on the premise that no disclaimers had been signed with respect to the
HLHJ rTE.

Page 19 of 26

36. As demonstrated by the foregoing evidence, Hill III exercised due diligence in his
attempts to uncover evidence of a disclaimer relating to the HLHJ rTE, but due solely to the
actions and behavior of these opposing parties, Hill III was not able to discover and present this
evidence at trial.
Hill Jr., Lyda Hill, and Wikert defrauded Hill III and committed fraud upon the Court
37. It is clear that Hill, J r. had every financial motive to truthfully represent to the IRS
that he had disclaimed all or a portion of his interest in the HLHJ rTE. Although Hill J r. and the
other defendants asserted everywhere else that he received his portion of the HLHJ rTE, by
informing the IRS that he had disclaimed his interest in the HLHJ rTE, Hill J r.s actions might
have led the IRS to look to other former trust assets to recover the taxes that were owed. In fact,
the IRS escrowed the HLHJ rTEs share of the sale of HPC to XTO, which was far more than
enough to pay the estate taxes owed. Hill J r. had similar financial motives to falsely represent to
Hill III that he had not executed that disclaimer, as Hill J r. was able to keep the $100 million that
rightfully belonged to Hill III and his family.
38. This judgment was unfairly obtained. Hill J r. has already been found by this
Court to have committed perjury. ECF 541. Hill J r. is a documented liar. ECF 541. Now, Hill
III discovers that according to Ms. Camuels deposition testimony, Hill J r. disclaimed his interest
in the HLHJ rTE. Such a disclaimer made Hill III a current beneficiary of that trust. But Hill J r.
concealed that disclaimer from Hill III through the representations made to the Court that Hill III
had no interest in the HLHJ rTE. And Hill J r. concealed that disclaimer by, among other things,
responding to a request for production served in the probate court that he would produce any
responsive documents, but then failed to do so. Until Ms. Camuels deposition was taken in
February 2014, Hill III had no way of knowing that Hill J r. had perpetrated yet another fraud

Page 20 of 26

upon this court. But-for this fraud, Hill III would not have given up his and his childrens
interest in more than $100 million in estate assets. Hill J r., Lyda Hill, and Alinda Wikert made
(1) material, (2) false misrepresentations as to the existence of a disclaimer on the HLHJ rTE, (3)
knew the misrepresentations were false when they made them, (4) Hill J r., Lyda Hill, and Alinda
Wikert made these misrepresentations with the intention that Hill III would act upon them, (5)
Hill III acted in reliance upon them by entering into the Global Settlement Agreement, which
resulted in the entry of the Final J udgment, and (6) Hill III suffered substantial injury. See
Trenholm v. Ratcliff, 646 S.W.2d 927, 930 (Tex. 1983) (quoting Wilson v. Jones, 45 S.W.2d 572,
574 (Tex. Comm. App. 1932); see also Ernst & Young, L.L.P. v. Pacific Mutual Life Ins. Co., 51
S.W.3d 573, 578 (Tex. 2001) [quoting Restatement (Second) of Torts 531(1977)]. As the
Texas Supreme Court stated,
[t]he maker of the misrepresentation must have information that would
lead a reasonable man to conclude that there is an especial likelihood that it will
reach those persons and will influence their conduct. There must be something in
the situation known to the maker that would lead a reasonable man to govern his
conduct on the assumption that this will occur. If he has the information, the
maker is subject to liability under the rule stated here.

Id. at 581. Here, Hill J r., Lyda Hill, and Alinda Wikert had information (knowledge of the
disclaimer on the HLHJ rTE) that clearly would lead a reasonable person to conclude that it
would influence Hill IIIs conduct, and cause Hill III to agree to the settlement.
39. Next, fraud on the court involves serious misconduct which does or attempts to
subvert the integrity of the court itself, or is a fraud perpetuated by officers of the court so that
the judicial machinery cannot perform in the usual manner its impartial task of adjudging
cases[.] Apotex Corp. v. Merck & Co., Inc., 507 F.3d 1357, 1361 (Fed. Cir. 2007); See Rozier v.
Ford Motor Co., 573 F.2d 1332, 1338 (5th Cir. 1978). The very first test for fraud on
the court under (Federal Rule of Civil Procedure 60) is whether the action in question prevented

Page 21 of 26

a party from fully and fairly litigating its case. See Smith v. Waterman Steamship Co., 31 F.
Appx 832 (5th Cir. 2002) (internal quotation marks omitted). If the first test is met, to
establish fraud on the court, it is necessary to show an unconscionable plan or scheme designed
to influence the court improperly in its discretion. All Freight Sys. v. James, 115 F. Appx 182,
187 (5th Cir. 2004). Egregious conduct such as the fabrication of evidence by a party in which
an attorney is implicated...constitutes fraud on the court. Jackson v. Thaler, 348 F. Appx 29, 34
(5th Cir. 2009).
40. Hill III has shown that the named opposing parties have committed fraud upon
this Court because he showed that they subverted the integrity of the Court, and Hill III has
shown that the alleged fraud could not have been discovered within the one-year time period
under Federal Rule of Civil Procedure 60(b). Fraud upon the court requires that there was a
material subversion of the legal process such as could not have been exposed within the one-year
window[.] Jackson v. Thaler, 348 F. Appx at 35 (quoting Apotex Corp., 507 F.3d at 1360).
And if the fraud could not have been discovered within the one-year period, the issue must be
raised within a reasonable time of discovery of the fraud. Apotex Corp., 507 F.3d at 1361.
Here, as soon as Hill III discovered the fraud committed by the named parties by way of the
Deposition of Ms. Camuel, which was taken on February 27, 2014, he initiated the process to
bring this instant claim, and in fact, he brought this claim within one month of such discovery.
Hill III is entitled to discovery, or, in the alternative, relief from the final
Judgment pursuant to Rule 60(b) based on Ms. Camuels new testimony

41. Fundamental to Hill IIIs decision to agree to the settlement in May 2010 were
Defendants numerous representations to Hill III and to the Court that Hill III had no interest in
the HLHJ rTE, and that no disclaimers had been signed with respect to that trust. See Exhibit 1,
Unsworn Declaration of (Hill III), 4-8. In this regard, Defendants could not have been clearer

Page 22 of 26

or more unequivocal in their representations to the Court that Hill III will never rise to the status
of being a beneficiary of said Haroldson L. Hunt, J r. Trust Estate. See, e.g., Exhibit 3, p. 1-2.
These same representations led the Dallas Probate Court in one of the related state court
litigations to dismiss Hill IIIs claims relating to the HLHJ rTE in on August 18, 2009. See
Exhibit 5, Order Sustaining Trustees Motion for Summary Judgment as to (Hill IIIs) Lack of
Standing.
42. Given that the HLHJ rTE had approximately $1 billion in assets at the time
Defendants were making these misrepresentations, and thus that a disclaimer in favor of Hill III
was potentially worth $100 million or more, it is beyond dispute that these representations were
highly material to Hill IIIs decision to settle.
43. As discussed above, new evidence in the form of the independent testimony of a
former IRS attorney regarding statements made to her by representatives of the HLHJ rTE while
this action was pending and before the settlement had been signed indicates that Defendants
representations concerning Hill IIIs purported lack of interest in the HLHJ rTE were false.
Indeed, Ms. Camuel testified on two different occasions during her February 27, 2014 deposition
that attorneys representing Tom Hunt, the executor of Hassies estate, told her that Hill J r. had
signed a disclaimer of his interest in the HLHJ rTE in favor of Hill III. See Exhibit 2, p. 171,
259.
44. This testimony from a former government attorney who has no interest in this
action and no reason to assist Hill III is inherently credible, and is entitled to substantial
deference. Moreover, because Tom Hunt was a party to this action at the time his attorneys
made these statements to Ms. Camuel, the statements constitute party admissions and therefore
are clearly admissible against Defendants. See Fed. Rule Evid. 801(d)(2)(D) (A statement that is

Page 23 of 26

offered against an opposing party and was made by the party's agent is not hearsay); See Nekolny
v Painter, 653 F.2d 1164, 1172 (7th Cir. 1981), cert. denied, 455 U.S. 1021 (1982) (Federal Rule
of Evidence 80l(d)(2)(D) takes the view that an agent who speaks on any matter within scope of
his agency or employment during existence of that relationship is unlikely to make statements
damaging to his principal or employer unless those statements are true).
45. Thus, it is highly unlikely that attorneys representing the executor of Hassies
estate would have made these statements regarding Hill J r. signing a disclaimer of his interest in
the HLHJ rTE in favor of Hill III unless these statements were indeed true, as such statements
would have been damaging to Hill J r., especially considering the pains that Hill J r. has taken to
represent to this Court and Hill III that no disclaimer of his interest in the HLHJ rTE exists.
46. In fact, the statements were not only party admissions, they were also judicial
admissions. Absent egregious circumstances, a distinct and formal admission made before,
during, or even after a proceeding by an attorney acting in his professional capacity binds his
client as a judicial admission. In re Velasquez, 19 I & N Dec. 377, 382 (B.I.A. 1986), cited with
approval in Ali v. Reno, 22 F.3d 442, 446 (2d Cir. 1994); see also Gevinson v. Manhattan
Construction Co. of Oklahoma, 449 S.W.2d 458, 467 (Tex. 1969) and Mendoza v. Fidelity &
Guaranty Ins. Underwriters, Inc., 606 S.W.2d 692, 694 (Tex. 1980) (judicial admissions are
conclusive upon the party making them, bars the marking making them from disputing them
later, and they relieve the opposing partys burden of proving the admitted fact).
47. At a bare minimum, Hill III respectfully submits that Ms. Camuels new
testimony is sufficient to entitle Hill III to take postjudgment discovery from Defendants and
their agents concerning the issue of whether any of Defendants signed a disclaimer relating to the
HLHJ rTE. See, e.g., MMAR Group, Inc. v. Dow Jones & Co., 187 F.R.D. 282 (S.D. Tex. 1999).

Page 24 of 26

Specifically, Hill III seeks to take the depositions of: (1) William Mureiko and Emily Parker, the
attorneys who told Ms. Camuel about Hill J r.s HLHJ rTE disclaimer, (2) Albert G. Hill, J r. (who,
according to Ms. Camuel, signed the disclaimer), (3) Lyda Hill (who previously claimed there
were no disclaimers signed relating to the HLHJ rTE), (4) Alinda Wikert (who previously
claimed there were no disclaimers signed relating to the HLHJ rTE), (5) Ivan Irwin, J r. (Hill J r.s
confidante, who likely has knowledge concerned the disclaimer), (6) Heather Washburne and
Elisa Summers (Hill IIIs sisters, who would likely also benefit from an HLHJ rTE disclaimer
and who likely would have had discussions with their father about this issue), (7) J ohn W.
Creecy, then the president and chief executive officer of Hunt Petroleum Corporation, and
HLHJ rTE trustee; (8) several lawyers at Haynes & Boone and J ones Day, (9) Patrick Shaw of
the law firm Woodard and Shaw, (10) Stephen Sands, who as a former MHTE & HHTE advisory
board member, may have detailed knowledge of disclaimers signed by the defendants; (11) Ellen
Flowers, who as a former MHTE & HHTE advisory board member and executor of Hassie
Hunts estate, may also have detailed knowledge of disclaimers signed by the defendants. Hill
III also seeks the right to serve limited additional document discovery on these same witnesses.
48. In the alternative, Hill III respectfully submits that Ms. Camuels sworn testimony
establishes that a fraud has been committed on the Court and on Hill III. Again, Ms. Camuel is
not a party to this action, but rather is a former IRS attorney who has absolutely no motivation to
provide false testimony concerning the existence or nonexistence of an HLHJ rTE disclaimer.
Ms. Camuel is a licensed attorney in Texas, obtained an LL.M degree from Southern Methodist
University, and has taught at SMU law school. See Exhibit 11, Exhibit 31 to Camuels
Deposition). Accordingly, her testimony about admissions made to her by Tom Hunts attorneys
are not only admissible, they are highly credible. This Court is well within its authority to

Page 25 of 26

simply credit Ms. Camuels testimony and find that a fraud has been committed on the Court. In
such event, the appropriate remedy for that fraud is to vacate the Settlement Agreement and Final
J udgment in this matter, and permit Hill III to pursue his original claims including, but not
limited to, his claim to be a beneficiary of the HLHJ rTE.
Conclusion and Prayer for Relief

Ms. Camuels recent deposition testimony indicates that a $100+million fraud has been
perpetrated on the Court and on Hill III. Hill III respectfully requests that he be given leave to
conduct limited additional discovery, as described above, in order to obtain further evidence
pertaining to the apparent fraud. In the alternative, Hill III respectfully requests that the Court
find that Ms. Camuels sworn testimony concerning Hill J r. signing a disclaimer of his interests
in the HLHJ rTE to be true, find that a fraud has been perpetrated on the Court, and vacate both
the Settlement Agreement and Final J udgment in this matter.

Leonard Thomas (Butch) Bradt
5151 San Felipe Street Suite 1950
Houston, TX 77056-4151
Phone: 713-255-3232
Fax: 713-255-3242
ltbradt@flash.net
Texas Bar #02841600
Lead Counsel of Record for Albert G. Hill III

Michael Mowla
445 E. FM 1382 #3-718
Cedar Hill, TX 75104
Phone: 972-795-2401
Fax: 972-692-6636
michael@mowlalaw.com
Texas Bar #24048680

/s/ Michael Mowla

By: Michael Mowla

Page 26 of 26

Certificate of Conference

This certifies that on March 24, 2014, I conferred with all of the opposing counsels of
record via email as to whether they agree with or oppose this motion. Lawrence Fischman
indicated that he has no objection to this motion. All of the following attorneys indicate that they
oppose this motion: Patrick McAndrew for CHD, Michael Raiff for Mr. Hill J r., Bill Sims for
Ivan Irwin J r., Tom Dees for Washburne and Summers, Carrie Huff for the Trust Defendants,
and Michael Hurst as the ad litem. I received no response from the other attorneys of record or
they could not object or agree.

/s/ Michael Mowla

By: Michael Mowla

Certificate of Service
This is to certify that on March 24, 2014, this document was filed using the ECF system,
which automatically sends notice of electronic filing to the attorneys of record who have
consented to accept such notice.

/s/ Michael Mowla

By: Michael Mowla


Hill IIIReply Brief

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Case No. 13-10939

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