Hill3 14-10505 Brief Opening 2014-07-20

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

14-10505

ALBERT G. HILL III, individually as a beneficiary of the Margaret Hunt Trust Estate, derivatively on behalf of the Margaret Hunt

Trust Estate, Individually, as a beneficiary of the Haroldson Lafayette Hunt, Jr. Trust Estate, and derivatively on behalf of the

Haroldson Lafayette Hunt, Jr. Trust Estate, Plaintiff-Appellant,

v.

WILLIAM SCHILLING, Individually and In His Capacity as a Member of the Advisory Board of the MHTE and a Member of the

Advisory Board of the HHTE; IVAN IRWIN, JR.; ALBERT G. HILL, JR.; ALINDA H. WIKERT; LYDA HILL; HEATHER V. WASHBURNE; ELISA M. SUMMERS; 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 MHTE; JOHN W. CREECY, Individually and In His Capacity as Trustee of the

HHTE; MARGARET KELIHER, Individually and in Her Capacity as Trustee of the MHTE and a Member of the Advisory Board of

the HHTE, Defendant-Appellees.

On Appeal from No. 3-07-CV-2020 United States District Court Northern District of Texas

Dallas Division

Appellants Opening Brief

Case: 14-10505 Document: 00512704358 Page: 1 Date Filed: 07/20/2014

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Submitted by: Michael Mowla 445 E. FM 1382 #3-718 Cedar Hill, Texas 75104 Phone: 972-795-2401 Fax: 972-692-6636 [email protected] Texas Bar No. 24048680 Attorney (Lead) for Appellant Leonard Thomas (Butch) Bradt 14015 Southwest Freeway Suite 4 Sugar Land, TX 77478 Phone: 972-201-0700 Fax: 972-201-1202 [email protected] Texas Bar No. 02841600 Attorney for Appellant

ORAL ARGUMENT REQUESTED


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I. Certificate of Interested Persons

So that the Court may evaluate possible disqualification or recusal, the

undersigned counsel certifies that the following listed persons may have an interest

in the outcome of this case [See 5th Cir. Rule 28.2.1 (2014)]:

Albert G. Hill III, Appellant Erin Nance Hill, Intervenor/Plaintiff Defendant/Appellees: William Schilling Tom Hunt Ivan Irwin, Jr. Albert G. Hill, Jr. Alinda H. Wikert Lyda Hill Heather V. Washburne Elisa M. Summers William Herbert Hunt Margaret Hunt Trust Estate Haroldson Lafayette Hunt Jr. Brett Ringle John W. Creecy Margaret Keliher Intervenors: Stephen Malouf Lisa Blue Baron & Blue Erin Nance Hill Law Offices of Stephen F. Malouf, PC Aldous Law Firm Charla Aldous


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Charla Aldous, PC Aldous Law Firm R. Dean Gresham Campbell Harrison & Dagley LLP Calloway, Norris, Burdette & Weber, PLLC Movants: Ellen Flowers Joyce Waller Michael V. Bourland Stewart H. Thomas Tom M. Dees, III Shamoun & Norman, LLP Interested Parties: Ron Cresswell Locke Lord Bissell & Liddell LLP XTO Energy Inc. Jonathan Nockels Brent Walker David Evans Gresham PC Receiver: Daniel L. Jackson Trustees: Larry E. Jacobs Peggy Allison Danny Bowlin Chester Donnally Michael Mowla, attorney for Albert G. Hill III on appeal (lead) and before the District Court, 445 E. FM 1382 #3-718, Cedar Hill, Texas 75104, phone 972-795-2401, fax 972-692-6636, email [email protected].


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Leonard Thomas (Butch) Bradt, attorney for Albert G. Hill III on appeal and before the District Court (lead), 14015 Southwest Freeway Suite 4, Sugar Land, TX 77478, phone 281-201-0700, fax 281-201-1202, email [email protected]. Iian D. Jablon, Aarti K. Wilson, John C. Hueston, Michael G. Ermer, and Marshall A. Camp, (prior) attorneys for Albert G. Hill III before the District Court, 1800 Avenue of the Stars, Suite 900, Los Angeles, California 90067 Gregory S. Coleman, Christian J. Ward, Richard B. Farrer, Eric Chenoweth, and Autry Ross, (prior) attorneys for Albert G. Hill III before the District Court, Yetter Coleman LLP, 221 West 6th Street, Suite 750, Austin, Texas 78701. Mark E. Smith, R. Wayne Gordon, and Touchstone Bernays Johnston, (prior) attorneys for Albert G. Hill III before the District Court, Beall Smith & Stollenwerck LLP, 4040 Renaissance Tower, 1201 Elm Street, Dallas, Texas 75270 Alan Roy Struble, (prior) attorney for Albert G. Hill III before the District Court, Alston & Bird LLP, 2200 Ross Avenue, Suite 3600, Dallas, Texas 75201. Dana B. Taschner, (prior) attorney for Albert G. Hill III before the District Court, 2049 Century Park East, Suite 1940, Los Angeles, California 90067. Brent R. Walker, (prior) attorney for Albert G. Hill III before the District Court, (prior) attorney for Intervenor Plaintiff Erin Nance Hill, and attorney for Intervenor Plaintiff Aldous Law Firm, Aldous Law Firm, 2311 Cedar Springs Road, Suite 2200, Dallas, Texas 75201. Charla G. Aldous, (prior) attorney for Albert G. Hill III before the District Court, (prior) attorney for Intervenor Plaintiff Erin Nance Hill, and attorney for Intervenor Plaintiff Charla Aldous, Intervenor Plaintiff Aldous Law Firm, Intervenor Plaintiff Charla Aldous, PC, and Respondent Aldous Law Firm, Aldous Law Firm, 2311 Cedar Springs Road, Suite 2200, Dallas, Texas 75201 John H. Barr, John H. House, Jr., Lucas Radney, M. Forest Nelson, (prior) attorneys for Intervenor Plaintiff Erin Nance Hill, Burt Barr & Associates, 203 East Colorado Boulevard, Dallas, Texas 75222.


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David W. Evans, (prior) attorney for Albert G. Hill III before the District Court, and attorney for Intervenor Plaintiff Law Offices of Stephen F. Malouf, PC, Law Offices of David Evans, 2811 Turtle Creek Boulevard Suite 1600, Dallas, Texas 75219. Dean D. Hunt, Matt R. Raley, and Michelle D. Pector, (prior) attorneys for Albert G. Hill III before the District Court, Baker & Hostetler LLP, 1000 Louisiana, Suite 2000, Houston, Texas 77002. W. Mark Lanier, Evan M. Janush, and Eugene R. Egdorf, (prior) attorneys for Albert G. Hill III before the District Court, The Lanier Law Firm PC, 6810 FM 1960 West, Houston, Texas 77069. James S. Renard, Melissa S. Yost, Michael J. Collins, William A. Brewer, III, (prior) attorneys for Albert G. Hill III before the District Court, Bickel & Brewer, 1717 Main Street, Suite 4800, Dallas, Texas 75201. Stephen F. Malouf, Jonathan Andrew Nockels, (prior) attorneys for Albert G. Hill III before the District Court, and attorney Intervenor Plaintiff Stephen Malouf, The Law Offices of Stephen F. Malouf PC, 3811 Turtle Creek Boulevard, Suite 1600, Dallas, Texas 75219. Justin M. Campbell, III, Kenneth J. Fair, Robin L. Harrison, Suzanne E. Goss, (prior) attorneys for Albert G. Hill III before the District Court, Campbell Harrison & Dagley LLP, 4000 Two Houston Center, 909 Fannin Street, Suite 4000, Houston, Texas 77010 Lisa A. Blue, (prior) attorney for Albert G. Hill III before the District Court, and attorney for Intervenor Plaintiff Lisa Blue and Intervenor Plaintiff Baron & Blue, Baron & Blue, 5956 Sherry Lane, Suite 1616, Dallas, Texas 75225. Elizabeth A. Scully and Mark A. Cymrot, (prior) attorneys for Albert G. Hill III before the District Court, Baker & Hostetler LLP, 1050 Connecticut Avenue NW, Suite 1100, Washington, DC 20036.


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R. Dean Gresham, (prior) attorney for Albert G. Hill III before the District Court, attorneys for Respondent R. Dean Gresham and Interested Party Gresham PC, Gresham PC, 2311 Cedar Springs Road, Suite 200, Dallas, Texas 75201. George W. Bramblett, Jr., attorney for Tom Hunt, Defendant/Appellee Margaret Hunt Trust Estate, Defendant/Appellee Haroldson Lafayette Hunt Jr. Trust Estate, Defendant/Appellee Brett Ringle, Defendant/Appellee John W. Creecy, and Defendant/Appellee Margaret Keliher, Haynes & Boone, LLP, 2323 Victory Avenue, Suite 700, Dallas, Texas 75219. Carrie L. Huff, attorney for Tom Hunt, Defendant/Appellee John W. Creecy, Defendant/Appellee Margaret Keliher , Defendant/Appellee Brett Ringle, Trustee Danny Bowlin, Trustee Chester Donnally, Trustee Peggy Allison, Margaret Hunt Trust Estate, and Defendant/Appellee Haroldson Lafayette Hunt Jr. Trust Estate, Haynes & Boone, LLP, 2323 Victory Avenue, Suite 700, Dallas, Texas 75219. Joseph W. Wagner, attorney for Defendant/Appellee Tom Hunt, Defendant/Appellee Margaret Hunt Trust Estate, and Defendant/Appellee Haroldson Lafayette Hunt Jr. Trust Estate, Haynes & Boone LLP, 901 Main Street, Suite 3100, Dallas, Texas 75202. David A. Dodds, attorney for Defendant/Appellee Tom Hunt, Defendant/Appellee Haroldson Lafayette Hunt Jr. Trust Estate, Defendant/Appellee Brett Ringle, Defendant/Appellee John W. Creecy, and Defendant/Appellee Margaret Keliher, Haynes & Boone LLP, 2323 Victory Avenue, Suite 700, Dallas, Texas 75219. David J. Beck, attorney for Defendant/Appellee Tom Hunt, Defendant/Appellee Margaret Hunt Trust Estate Murray Fogler, Defendant/Appellee Haroldson Lafayette Hunt Jr. Trust Estate, Defendant/Appellee Brett Ringle, Defendant/Appellee John W. Creecy, and Defendant/Appellee Margaret Keliher, Beck Redden & Secrest LLP, 1221 McKinney Street, Suite 4500, Houston, Texas 77010.


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Murray Fogler, attorney for Defendant/Appellee Tom Hunt, Defendant/Appellee Margaret Hunt Trust Estate Murray Fogler, Defendant/Appellee Haroldson Lafayette Hunt Jr. Trust Estate, Defendant/Appellee Brett Ringle, Defendant/Appellee John W. Creecy, and Defendant/Appellee Margaret Keliher, Beck Redden & Secrest LLP, 1221 McKinney Street, Suite 4500, Houston, Texas 77010. Harry M. Reasoner, attorney for Defendant/Appellee Ivan Irwin, Jr., Vinson & Elkins LLP, 1001 Fannin Street, Suite 2500, Houston, Texas 77002. Michael L. Raiff, attorney for Defendant/Appellee Ivan Irwin, Jr. and Defendant/Appellee Albert G. Hill, Jr., Gibson Dunn & Crutcher LLP, 2100 McKinney Avenue, Suite 1100, Dallas, Texas 75201. William D. Sims, Jr., attorney for Defendant/Appellee Ivan Irwin, Jr., Vinson & Elkins LLP, 2001 Ross Avenue, Suite 3700, Dallas, Texas 75201. J. Keith Benedict, attorney for Defendant/Appellee Albert G. Hill, Jr., A G Hill Partners LLC, 1601 Elm Street, Suite 5000, Dallas, Texas 75201. Amanda R. Tyler, Eric W. Pinker, Kent D. Krabill, attorneys for Defendant/Appellee Albert G. Hill, Jr. and Movant Joyce Waller, Lynn Tillotson & Pinker LLP, 750 N. St. Paul Street, Suite 1400, Dallas, Texas 75201. Michael P. Lynn, Jeremy A. Fielding, and Richard A. Smith, attorneys for Defendant/Appellee Albert G. Hill, Jr., and Movant Joyce Waller, Lynn Tillotson Pinker & Cox LLP, 2100 Ross Avenue, suite 2700, Dallas, Texas 75201. C. Gregory Shamoun, Dennis M. Holmgren, James R. Tucker, and Jonathan J. Cunningham, attorneys for Defendant/Appellee Albert G. Hill, Jr., and Shamoun & Norman, LLP, Shamoun & Norman LLP, 1775 Wittington Place, Suite 200 LB 25, Dallas, Texas 75234. James C. Ho, attorney for Defendant/Appellee Albert G. Hill, Jr., Gibson Dunn & Crutcher LLP, 2100 McKinney Avenue, Suite 1100, Dallas, Texas 75201.


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Robert H. Thomas and Peter M. Jung, attorneys for Defendant/Appellee Albert G. Hill, Jr., Strasburger & Price, 901 Main Street, Suite 4300, Dallas, Texas 75250. Donald E. Godwin, Bruce W. Bowman, Jr., Israel R. Silvas, Jenny L. Martinez, Robert J. McGuire, and W. Ira Bowman, attorneys for Defendant/Appellee Alinda H. Wikert, Godwin Pappas & Ronquillo PC, 1201 Elm Street, Suite 1700, Dallas, Texas 75270. Frank N. Ikard, Jr., Lauren K. Davis, Laurie Ratliff, and Mary E. Haught, attorneys for Defendant/Appellee Lyda Hill, Ikard Golden PC, 400 West 15th Street, Suite 975, Austin, Texas 78701. James D. Brown and Michael P. Massad, attorneys for Defendant/Appellee Lyda Hill, Winstead PC, 5400 Renaissance Tower, 1201 Elm Street, Dallas, Texas 75201. Russell A. Devenport, attorney for Defendant/Appellee Lyda Hill, McDonald Sanders, 777 Main Street, Suite 1300, Fort Worth, Texas 76102. Stewart H. Thomas and Tom M. Dees, III, attorneys for Defendant/Appellee Heather V. Washburne and Defendant/Appellee Elisa M. Summers, Hallett & Perrin PC, 2001 Bryan Street, Suite 3900, Dallas, Texas 75201. B. Patrick Shaw, attorney for Defendant/Appellee William Herbert Hunt, Woodward & Shaw, 4849 Greenville Avenue, Suite 1111, Dallas, Texas 75206. Stephen D. Susman, Thomas W. Paterson, and Stephen Shackelford, Jr., attorneys for Defendant/Appellee Brett Ringle and Defendant/Appellee John W. Creecy, Susman Godfrey LLP, First Interstate Plaza, 1000 Louisiana Street, Suite 1500, Houston, Texas 77002. Frank L. Branson, Eric T. Stahl, and Quentin Brogdon, attorneys for Defendant/Appellee Margaret Keliher, Law Offices of Frank L. Branson, 4514 Cole Avenue, Suite 1800, Dallas, Texas 75205. Gilbert I. Low, attorney for Defendant/Appellee Margaret Keliher, Orgain Bell & Tucker, P.O. Box 1751, 470 Orleans Street, Beaumont, Texas 77704.


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Alan S. Loewinsohn and Kerry F. Schonwald, Attorneys for Intervenor Plaintiff Stephen Malouf, Intervenor Plaintiff Lisa Blue, Intervenor Plaintiff Charla Aldous, Intervenor Plaintiff Baron & Blue, Intervenor Plaintiff Law Offices of Stephen F. Malouf, PC, Intervenor Plaintiff Aldous Law Firm, Intervenor Plaintiff Charla Aldous, PC, Respondent Aldous Law Firm, Interested Party Jonathan Nockels, Interested Party Brent Walker, Interested Party David Evans, Interested Party Gresham PC, and Respondent R. Dean Gresham, Loewinsohn Flegle Deary LLP, 12377 Merit Drive, Suite 900, Dallas, Texas 75251. Ryan K. McComber and A. Erin Dwyer, attorneys for Movant Ellen Flowers, Figari & Davenport, L.L.P., 3400 Bank of America Plaza, 901 Main Street, LB 125, Dallas, Texas 75202. David J. Goodman, William R. Korb, Jr., Eric J. Millner, attorneys for Movant Michael V. Bourland, Bourland Wall & Wenzel PC, 301 Commerce Street, Suite 1500, Fort Worth, Texas 76102. C. Shawn Cleveland, Emily C. McCall, and Matthew D. Orwig, attorneys for Movant Stewart H. Thomas and Movant Tom M. Dees, III, SNR Denton US LLP, 2000 McKinney Avenue, Suite 1900, Dallas, Texas 75201. Daniel D. Tostrud, attorney for Movant Shamoun & Norman, LLP, Cobb Martinez Woodward PLLC, 1700 Pacific, Suite 3100, Dallas, Texas 75201. Angela M. Hough, attorney for Movant Shamoun & Norman, LLP, Hermes Sargent Bates LLP, 901 Main Street, Suite 5200, Dallas, Texas 75202. Michael K. Hurst, Guardian Ad Litem, Gruber Hurst Johansen & Hail LLP, 1445 Ross Avenue, Suite 2500, Dallas, Texas 75202. Dena DeNooyer Stroh, Guardian Ad Litem, Gruber Hurst Johansen & Hail LLP, 1445 Ross Avenue, Suite 2500, Dallas, Texas 75202.


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William A. Barr, attorney for Interested Party Ron Cresswell and Interested Party Locke Lord Bissell & Liddell LLP, 2200 Ross Avenue, Suite 2200, Dallas, Texas 75201. Sara N. Copeland, attorney for Interested Party Ron Cresswell and Interested Party Locke Lord Bissell & Liddell LLP, 2200 Ross Avenue, Suite 2200, Dallas, Texas 75201. Mitchell M. Murphy, counsel for Interested Party XTO Energy Inc., Winstead PC, 777 Main Street, Suite 1100, Fort Worth, Texas 76102. Jeffrey C. King, counsel for Interested Party XTO Energy Inc., Winstead PC, 777 Main Street, Suite 1100, Fort Worth, Texas 76102. Talmage Boston, attorney for Receiver Daniel L. Jackson, Winstead PC, 5400 Renaissance Tower, 1201 Elm Street, Dallas, Texas 75270. Larry E. Jacobs, attorney for Trustee Larry E. Jacobs, Boyer Jacobs Short, Nine Greenway Plaza, Suite 3100, Houston, Texas 77046. Robert W. Calloway, attorney for Intervenor Campbell Harrison & Dagley LLP and Intervenor Calloway, Norris, Burdette & Weber, PLLC, Calloway Norris Burdette & Weber, 3811 Turtle Creek, Suite 400, Dallas, Texas 75219. Mary C. Burdette, attorney for Intervenor Campbell Harrison & Dagley LLP and Intervenor Calloway, Norris, Burdette & Weber, PLLC, Calloway Norris Burdette & Weber, 3811 Turtle Creek, Suite 400, Dallas, Texas 75219. Kenneth J. Fair, Robin L. Harrison, and Suzanne E. Goss, attorneys for Intervenor Campbell Harrison & Dagley LLP and Intervenor Calloway, Norris, Burdette & Weber, PLLC, Campbell Harrison & Dagley LLP, 4000 Two Houston Center 909 Fannin Street, Suite 4000, Houston, Texas 77010. Hon. Sam Lindsay, Presiding Judge of the United States District Court, 1100 Commerce Street, Room 1544, Dallas, Texas 75242, phone (214) 753-2365.


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Hon. Reed C. OConnor, Presiding Judge of the United States District Court (Recused May 22, 2013), 1100 Commerce Street, Room 1310, Dallas, Texas 75242, phone (214) 753-2650, fax 214-753-2657. Hon. Barbara Lynn, Presiding Judge of the United States District Court (Recused May 22, 2013), 1100 Commerce Street, Room 1654, Dallas, Texas 75242, phone (214) 753-2420. Hon. Jorge Solis, Presiding Judge of the United States District Court (Recused September 26, 2013), 1100 Commerce Street, Room 1654, Dallas, Texas 75242, phone (214) 753-2342, fax 214-753-2352. Hon. David C. Godbey, Presiding Judge of the United States District Court (Recused October 1, 2013), 1100 Commerce Street, Room 1358, Dallas, Texas 75242, phone 214-753-2700, fax 214-753-2707 Hon. Jayne Boyle, Presiding Judge of the United States District Court (Recused October 2, 2013), 1100 Commerce Street, Room 1520, Dallas, Texas 75242, phone 214-753-2740, fax 214-753-2744 Hon. Sidney Fitzwater, Presiding Judge of the United States District Court (Recused October 2, 2013), 1100 Commerce Street, Room 1528, Dallas, Texas 75242, phone 214-753-2333. Hon. Ed Kinkeade, Presiding Judge of the United States District Court (Recused October 2, 2013), 1100 Commerce Street, Room 1625, Dallas, Texas 75242, phone 214-753-2720, fax 214-753-2727 Hon. Renee Toliver, Magistrate Judge of the United States District Court, 1100 Commerce Street, Room 1407, Dallas, Texas 75242. Hon. Paul Stickney, Magistrate Judge of the United States District Court, 1100 Commerce Street, Room 1611, Dallas, Texas 75242

/s/ Michael Mowla

By: Michael Mowla Attorney for Mr. Hill III


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II. Statement Regarding Oral Argument Appellant Mr. Hill III requests oral argument. See Fed. Rule App. Proc.

34(a)(1) (2014) & 5th Cir. Rule 28.2.3 (2014). The facts and arguments are

thoroughly briefed. However, because the underlying litigation: (1) involves

numerous parties and other participants, (2) was complex, and (3) has a lengthy

record, oral argument may assist this Court.


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III. Table of Contents I. Certificate of Interested Persons .................................................................... 3

II. Statement Regarding Oral Argument ...........................................................13

III. Table of Contents ........................................................................................ 14

IV. Table of Authorities ...................................................................................... 17

V. Statement of Jurisdiction ............................................................................. 22

VI. Issues Presented for Review......................................................................... 24

VII. Statement of the Case and Facts .................................................................. 25

1. Introduction ................................................................................................. 25

2. Evidence supporting the Camuel 60(b) Motion. .......................................... 27

3. Opinion of the District Court denying the Camuel 60(b) Motion ................ 35

4. Judge OConnor recuses himself, and then six other district judges recuse themselves. ....................................................................................... 36

5. Appellants OConnor 60(b) Motion .......................................................... 37

6. The district court denies Appellants OConnor 60(b) Motion .................. 38

7. Appellant files the Toliver Recusal Motion ................................................. 39

8. The district court denies the Toliver Recusal Motion. ................................ 41

VIII. Summary of the Arguments ............................................................... 44

IX. Issues with Argument and Authorities ......................................................... 46

1. Issue One: The district court abused its discretion when it denied Appellants Camuel 60(b) Motion because the testimony of Camuel is new evidence that establishes that there may be concealed irrevocable disclaimers and fraud regarding the Hassie estate. At minimum, Appellant is entitled to discovery on this issue, and the district court abused its discretion by denying Appellants request for discovery. ............ 46

A. Standard of review ............................................................................. 46

B. Rule 60(b) .......................................................................................... 46


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C. Appellant exercised due diligence in attempting to uncover the fraud but due diligence could not have discovered the existence of a disclaimer by Hill Jr. on Hassies estate. ..................................... 49

D. The testimony of Camuel that trust attorneys Mureiko and Parker told Camuel of the existence of a disclaimer on the Hassie Estate is new evidence, is not hearsay, and establishes that fraud was committed against Appellant and upon the district court. ..................................................................................... 53

E. At minimum, Appellant is entitled to discovery on this issue, and the district court abused its discretion by denying Appellants request for discovery. ..................................................... 62

F. Conclusion ......................................................................................... 64

2. Issue Two: The district court abused its discretion when it denied Appellants OConnor 60(b) Motion because: (1) the motion is not foreclosed by the mandate rule, and (2) without the opportunity to conduct at least some limited discovery as to why OConnor recused himself without explanation after refusing to do so when Appellant requested, it is impossible to provide additional evidence to establish that OConnor violated 28 U.S.C. 455 by failing to recuse himself earlier. ............................................................................................. 65

A. Appellants OConnor 60(b) Motion is not foreclosed by the mandate rule ...................................................................................... 65

B. Without the opportunity to conduct at least some limited discovery as to why OConnor recused himself without explanation after refusing to do so when Appellant requested, it is impossible to provide additional evidence to establish that OConnor violated 28 U.S.C. 455 by failing to recuse himself earlier. ................................................................................................ 67

C. Conclusion ......................................................................................... 70

3. Issue Three: If a federal judges close relationship with a person, who is a lawyer on Case A, causes the judge to determine under 28 U.S.C. 455 that recusal is required in Case A due to the appearance of impropriety, would recusal of the federal judge also be required in Case B where the same person is a material witness?.................................... 71

A. Introduction ........................................................................................ 71


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B. The appearance of impropriety or partiality alone requires a district judge to recuse herself. .......................................................... 72

C. Estoppel by conduct required Toliver to recuse herself in Appellants case. ............................................................................... 75

D. Conclusion ......................................................................................... 77

X. Conclusion and Prayer for Relief ................................................................. 78

XI. Certificate of Service ................................................................................... 79

XII. Certificate of Compliance with Fed. Rule App. Proc. 32(a) ......................... 79


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IV. Table of Authorities Cases

Af-Cap, Inc. v. Republic of Congo, 462 F.3d 417 (5th Cir. 2006) .......................... 66

Ag Pro, Inc. v. Sakraida, 512 F.2d 141 (5th Cir. 1975), reversed on other grounds, 425 U.S. 273 (1976) ........................................................................ 47

All Freight Sys. v. James, 115 F. Appx. 182 (5th Cir. 2004) ................................... 58

Alvestad v. Monsanto Co., 671 F.2d 908 (5th Cir. 1982) ....................................... 46

Apotex Corp. v. Merck & Co., Inc., 507 F.3d 1357 (Fed. Cir. 2007) ................. 57, 58

Arizona v. California, 460 U.S. 605 (1983) ............................................................ 67

Bulloch v. United States, 721 F.2d 713 (10th Cir. 1983) ......................................... 57

Chavez v. Balesh, 704 F.2d 774 (5th Cir. 1983) ...................................................... 23

Christiansen v. National Savings & Trust Co., 683 F.2d 520 (D.C. Cir. 1982) ...................................................................................................................... 73

Ciacciarella v Bronko, 613 F.Supp.2d 262 (D.C. Conn. 2009) ............................... 62

Davis v. Mobil Oil Exploration & Producing Southeast, Inc., 864 F.2d 1171 (5th Cir. 1989) ................................................................................................ 61

Diaz v. Methodist Hosp., 46 F.3d 492 (5th Cir. 1995) ........................................... 56

Edwards v. City of Houston, 78 F.3d 983 (5th Cir. 1996) (en banc) ....................... 46

Ernst & Young, L.L.P. v. Pacific Mutual Life Ins. Co., 51 S.W.3d 573, (Tex. 2001) ............................................................................................................ 55

Ex parte McCarthy, 1 K. B. 256 (1923) .................................................................. 74

Federal Deposit Ins. Corp. v. Castle, 781 F.2d 1101 (5th Cir. 1986) ....................... 49

First Nat. Bank v. Lustig, 96 F.3d 1554 (5th Cir. 1996) .......................................... 58

Gay v. United States, 411 U.S. 974 (1973) .............................................................. 74

General Universal Sys., Inc. v. HAL, Inc., 500 F.3d 444 (5th Cir. 2007) ...................................................................................................................... 65

Goldstein v. MCI Worldcom, 340 F.3d 238 (5th Cir. 2003) .................................. 47

Gov. Fin. Servs. One Ltd. Partnership v. Peyton Place, 62 F.3d 767 (5th Cir. 1995) ........................................................................................................ 47


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Gov. Fin. Servs. One Ltd. Partnership v. Peyton Place, Inc., 62 F.3d 767 (5th Cir. 1995) .................................................................................................. 56

Green v Foley, 856 F.2d 660 (4th Cir. 1988), cert. denied, 490 US 1031 (1989) ............................................................................................................. 56

Hall v. Small Business Admin., 695 F.2d 175 (5th Cir. 1983) ................................. 73

Harre v. A.H. Robins Co., 750 F.2d 1501 (11th Cir. 1985) ...................................... 63

Harrell v. DCS Equip. Leasing Corp., 951 F.2d 1453 (5th Cir. 1992) ..................... 48

Harrison v. Formosa Plastics Corp. Tex., 776 F.Supp.2d 433 (S.D. Tex. 2011) .............................................................................................................. 61

Henderson v. Dept of Pub. Safety, 901 F.2d 1288 (5th Cir. 1990) ................... 43, 75

Hesling v. CSX Transp., Inc., 396 F.3d 632 (5th Cir. 2005) .................................. 57

Illinois Cent. Gulf R.R. v International Paper Co., 889 F.2d 536 (5th Cir. 1989) ............................................................................................................... 65

In re M/V Peacock, 809 F.2d 1403 (9th Cir. 1987) ................................................ 63

In re Murchison, 349 U.S. 133 (1955) ..................................................................... 73

In re United States, 441 F.3d 44 (1st Cir. 2006) ..................................................... 68

Inter Financing Exchange v. Bartlett & Co., 659 F.2d 1320 (5th Cir. 1981) ....................................................................................................................... 49

Jackson v. Thaler, 348 F. Appx. 29 (5th Cir. 2009) ............................................... 58

Kennedy v. Texas Utils., 179 F.3d 258 (5th Cir. 1999) ........................................... 46

Laxton v. Gap Inc., 333 F.3d 572 (5th Cir. 2003) ................................................... 59

Leather Mfrs.' Nat. Bank v. Morgan, 117 U.S. 96 (1886) ....................................... 76

Ledet v. United States, 297 F.2d 737 (5th Cir. 1962) ............................................. 47

Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847 (1988) .................. 67, 69

Liteky v. United States, 510 U.S. 540 (1994) (Kennedy, J. concurring) ................. 73

Lopez v. Cronk, No. 03-1860, 2004 U.S. Dist. LEXIS 10936, 2004 WL 1336421 (E.D. La. 2004) ................................................................................. 60

Marcel v. Placid Oil Co., 11 F.3d 563 (5th Cir. 1994) ............................................. 62

McFarland v. Campbell, 213 F.2d 855 (5th Cir. 1954) ........................................... 76


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Minneapolis, St. Paul, & Sault Ste. Marie Ry. Co. v. Moquin, 283 U.S. 520 (1931) ............................................................................................................... 63

MMAR Group, Inc. v. Dow Jones & Co., 187 F.R.D. 282 (S.D. Tex. 1999) ...................................................................................................................... 63

Montgomery v. Hall, 592 F.2d 278 (5th Cir. 1979) ................................................ 56

Montgomery v. Hall, 592 F.2d 278 (5th Cir. 1979) ................................................ 56

Morgan v. R.R. Co., 96 U.S. 716 (1878) ................................................................. 76

Nekolny v Painter, 653 F.2d 1164 (7th Cir. 1981), cert. denied, 455 U.S. 1021 (1982) ..................................................................................................... 61

Offutt v. United States, 348 U.S. 11 (1954) ............................................................ 73

Parrish v. Bd. of Commrs of Ala. State Bar, 524 F.2d 98 (5th Cir. 1975) ................................................................................................................. 42, 75

Quinette v. Bisso, 136 F. 825 (5th Cir. 1905) .......................................................... 59

Rep. of Panama v. Am. Tobacco Co. 217 F.3d 343 (5th Cir. 2000) ........................ 67

Rozier v. Ford Motor Co., 573 F.2d 1332 (5th Cir. 1978) ........................... 48, 58, 62

Seaboldt v. Pennsylvania Railroad Company, 290 F.2d 296 (3d Cir. 1961) ....................................................................................................................... 63

See Mann v. Bank of N.Y. Mellon, No. 4:12-CV-2618, 2013 U.S. Dist. LEXIS 131749, 2013 WL 5231482 (S.D. Tex. 2013) ............................................... 77

Shell Oil Co. v. U.S., 672 F.3d 1283 (Fed. Cir. 2012) ............................................. 67

Silas v. Sears, Roebuck & Co., Inc., 586 F.2d 382 (5th Cir. 1978) .......................... 23

Square Construction Co. v. Washington Metropolitan Area Transit Auth., 657 F.2d 68 (4th Cir. 1981) ......................................................................... 55

Square Construction Co. v. Washington Metropolitan Area Transit Authority, 657 F.2d 68 (4th Cir. 1981) ................................................................... 63

Stridiron v. Stridiron, 698 F.2d 204 (3d Cir. 1983) ................................................ 63

Terrell v. Household Goods Carriers' Bureau, 494 F.2d 16 (5th Cir. 1974), cert. denied, 419 U.S. 987 (1974) ................................................................. 67

Thompson v. First Nat. Bank of Toledo, Ohio, 111 US 529 (1884) ........................ 76

Trans Mississippi Corp. v. United States, 494 F.2d 770 (5th Cir. 1974) ...................................................................................................................... 47


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Trenholm v. Ratcliff, 646 S.W.2d 927 (Tex. 1983) ................................................ 55

United States v. 329.73 Acres of Land, 695 F.2d 922 (5th Cir. 1983) ..................... 50

United States v. Archundia, 242 Fed. Appx. 278 (5th Cir. 2007) .......................... 66

United States v. Becerra, 155 F.3d 740 (5th Cir. 1998) .......................................... 66

United States v. Bray, 546 F.2d 851 (10th Cir. 1976) ............................................. 68

United States v. City of New Orleans, 731 F.3d 434 (5th Cir. 2013) ................ 47, 48

United States v. Cooley, 1 F.3d 985 (10th Cir. 1993) ............................................. 68

United States v. Cotton, 535 U.S. 625 (2002) ........................................................ 61

United States v. Jordan, 49 F.3d 152 (5th Cir. 1995) .............................................. 67

United States v. Lee, 358 F.3d 315 (5th Cir. 2004) ................................................ 66

United States v. Matthews, 312 F.3d 652 (5th Cir. 2002) ................................ 65, 66

United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001) ............................ 68

United States v. O'Neil, 709 F.2d 361 (5th Cir. 1983) ............................................ 23

United States v. Pineiro, 470 F.3d 200 (5th Cir. 2006) .......................................... 65

United States v. Richards, 204 F.3d 177 (5th Cir. 2000), cert. denied sub nom, 531 U.S. 826 (2000) ................................................................................ 61

Vehicle Removal Corp. v. Lopez (In re Lopez), 269 B.R. 607 (N.D. Tex. 2001) .............................................................................................................. 50

Washington v. Patlis, 916 F.2d 1036 (5th Cir. 1990) .............................................. 56

White v. Murtha, 377 F.2d 428 (5th Cir. 1967) ...................................................... 66

Wilson v. Jones, 45 S.W.2d 572 (Tex. Comm. App. 1932) ..................................... 55

Wilson v. Thompson, 638 F.2d 801 (5th Cir. 1981) ............................................... 63

Statutes

28 U.S.C. 1291 (2014) ......................................................................................... 23

28 U.S.C. 1441 (2007) ......................................................................................... 22

28 U.S.C. 455 (2014) ............................................................................... 69, 70, 72

Other Authorities

Black's Law Dictionary (7th ed. 1999) .............................................................. 50, 59


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Hearings on S.1064, To Broaden and Clarify the Grounds for Judicial Disqualification, before the Subcomm. on Improvements in Judicial Machinery of the Senate Comm. on the Judiciary, 93rd Cong., 1st Sess. 16 (1971) (statement of Senator Bayh) ........................................................... 73

Restatement (Second) of Torts 531 (1977) .......................................................... 55

Stewart C., Abuse of Power and Judicial Misconduct: A Reflection of Contemporary Ethical Issues Facing Judges, 1 U. St. Thomas L.J. 464 (2003) .................................................................................................................... 74

Wests Legal Thesaurus / Dictionary (West 1986) ................................................ 50

Rules

5th Cir. Rule 28.2.1 (2014) ....................................................................................... 3

5th Cir. Rule 28.2.3 (2014) ......................................................................................13

5th Cir. Rule 31.1 (2014) ......................................................................................... 79

5th Cir. Rule 32.3 (2014) ........................................................................................ 79

Fed. Rule App. Proc. 28 (2014) .................................................................. 23, 24, 44

Fed. Rule App. Proc. 32 (2014) .............................................................................. 79

Fed. Rule App. Proc. 34 (2014) ...............................................................................13

Fed. Rule App. Proc. 4 (2014) ................................................................................ 23

Fed. Rule Civ. Proc. 60 (2014) ........................................................................ passim

Fed. Rule Evid. 801 (2014) ..................................................................................... 61


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V. Statement of Jurisdiction

Defendants-Appellees invoked the district courts jurisdiction under 28

U.S.C. 1441 (a) (2007), which allows the removal of any civil action brought in a

State Court of which the district courts of the United States have original

jurisdiction. The final orders that are appealed in this case are entitled as follows:

(1) an Order dated April 17, 2014 (Camuel 60(b) Order) (ROA. 18781-18786) 1 in

which the district court denied Appellants Motion for Leave of Court to File an

Emergency Motion for Relief Pursuant to Federal Rule of Civil Procedure 60(b)

Based on New Testimony by Former IRS Attorney Cynthia Camuel (Camuel

60(b) Motion) (ROA. 18266-18751); (2) a Memorandum Opinion and Order

dated April 17, 2014 (OConnor 60(b) Order) (ROA. 18771-18780), in which the

district court denied Appellants Supplemental Motion Pursuant to Rule 60(b) to

Vacate Global Settlement Agreement in Light of the Honorable Reed OConnors

Recusal, or in the Alternative, for Leave to Take Discovery (OConnor 60(b)

Motion) (ROA. 35171-35307), and (3) a Memorandum Opinion and Order dated

April 15, 2014 (Toliver Recusal Order) (ROA. 18763-18770), in which the

district court denied Appellants Motion to Recuse Magistrate Judge Renee

1 The Record on Appeal is referenced throughout this Brief as ROA followed by the page number of the record.


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Toliver (Toliver Recusal Motion) (ROA. 18096-18113).2

On April 22, 2014, a timely Notice of Appeal was filed by Appellant, in

which Appellant cited all three orders listed above. (ROA. 18787-18788); See Fed.

Rule App. Proc. 4 (2014). This Court has jurisdiction over this appeal under 28

U.S.C. 1291 (2014). Further, the denial of a motion brought under Federal Rule

of Civil Procedure 60(b) is a final, appealable order. See Silas v. Sears, Roebuck &

Co., Inc., 586 F.2d 382, 384 (5th Cir. 1978). An appeal of a denial of a motion

brought under Rule 60(b) addresses not the merits of the underlying judgment, but

only the denial of the motion. United States v. ONeil, 709 F.2d 361, 373 (5th Cir.

1983); Chavez v. Balesh, 704 F.2d 774, 777 (5th Cir. 1983). Thus, this Court has

jurisdiction over this appeal. See Fed. Rule App. Proc. 28(a)(4) (2014).

2 Although the Toliver Recusal Order references Doc 524 as Appellants motion to recuse Magistrate Judge Toliver, Doc 540 as Tolivers Order denying the motion to recuse, and Doc 543 as Appellants Objections to Tolivers Order denying the motion to recuse, these document numbers actually pertain to documents filed under severed cause number 3:10-CV-2269. In the case before this Court, the appeal of cause number 3:07-CV-02020, Appellants motion to recuse Toliver is actually ECF 1380 (ROA.18096-18118), and the district court denied the motion to recuse Toliver based solely upon ECF 1380. In 3:07-CV-02020, Toliver did not enter an order denying the motion to recuse her, so no subsequent objections were filed by Appellant in 3:07-CV-02020 on the Toliver recusal. Further, in ECF 1475 (ROA.18763-18770), the district court held ...recusal is not required in Case No. 3:07-CV-2020...; or 3:12-CV-4599...; and to the extent the Hills move to recuse ...Toliver, the court denies the motions. The court directs the Clerk ... to file a copy of this Memorandum Opinion and Order in Civil Action Nos. 3:07-CV-2020... and 3:12-CV-4599...


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VI. Issues Presented for Review The following issues are presented for appellate review [See Fed. Rule App.

Proc. 28(a)(5) (2014)]:

Issue One: The district court abused its discretion when it denied Appellants Camuel 60(b) Motion because the testimony of Camuel is new evidence that establishes that there may be concealed irrevocable disclaimers and fraud regarding the Hassie estate. At minimum, Appellant is entitled to discovery on this issue, and the district court abused its discretion by denying Appellants request for discovery. Issue Two: The district court abused its discretion when it denied Appellants OConnor 60(b) Motion because: (1) the motion is not foreclosed by the mandate rule, and (2) without the opportunity to conduct at least some limited discovery as to why OConnor recused himself without explanation after refusing to do so when Appellant requested, it is impossible to provide additional evidence to establish that OConnor violated 28 U.S.C. 455 by failing to recuse himself earlier. Issue Three: If a federal judges close relationship with a person, who is a lawyer on Case A, causes the judge to determine under 28 U.S.C. 455 that recusal is required in Case A due to the appearance of impropriety, would recusal of the federal judge also be required in Case B where the same person is a material witness?


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VII. Statement of the Case and Facts 1. Introduction

The background facts of this case are extensive and known to this court, so

Appellant will spare the Court an extensive background summary. Appellant

instead provides the following brief summary: In 1935, H.L. Hunt established two

trusts in the names of his eldest children: the Margaret Hunt Trust Estate

(MHTE) and the Haroldson (Hassie) L. Hunt, Jr. Trust Estate (HHTE).

(ROA. 18124). Margaret Hunt had three children, one of whom is Albert G. Hill,

Jr. (Hill Jr.), and all of whom were beneficiaries of both trusts. Id. Hill Jr. also

had three children, one of whom is Appellant, and all of whom also are beneficiaries

of both trusts. Id. The Appellees are the trustees, advisory boards of the trusts,

other beneficiaries of the trusts, a guardian ad litem appointed by the district court

to represent the interests of Appellants minor children, and several of Appellants

former attorneys in the underlying litigation. Id.

On December 3, 2007, Appellant filed suit in the 14th Judicial District Court

of Dallas County, Texas, alleging wrongdoing in the management of the trusts

under RICO, breaches of fiduciary duties and trust against Tom Hunt and

Schilling, a demand for the accounting of HHTE against Tom Hunt, fraud against

Tom Hunt, civil conspiracy against all the defendants, aiding and abetting breaches

of fiduciary duty against Schilling, Irwin, Hill Jr., Wikert, and Lyda Hill, aiding and


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abetting fraud against Schilling, Irwin, Hill Jr., Wikert, and Lyda Hill, asked that

Tom Hunt be removed as trustee of the trusts, asked that Schilling be removed as

an advisory board member of the trusts, asked that receivers be appointed for the

trusts, asked that successor trustees and board members be appointed to the trusts,

and sought a declaration that he is a direct and vested beneficiary of the MHTE.

(ROA. 276-321, 18124-18125).

The defendants removed the case to federal court. (ROA. 245-251). After

over two years of litigation, on May 13, 2010, the parties entered into a Global

Settlement and Mutual Release Agreement (GSA). (ROA. 18125). The GSA

left a number of details and considerable documentation to be implemented under

the jurisdiction of the district court. Id. On November 8, 2010, after considering

various proposed judgments and arguments from the parties concerning the

implementation of the GSA, the district court entered its Final Judgment. (ROA.

18125, 28757-28887).

After entry of the final judgment, Appellant filed a motion to alter or amend

the Final Judgment, challenging on various grounds the Final Judgments

implementation of the GSA. (ROA. 18125, 29078-29099). Then on March 12,

2012, Appellant filed a motion seeking to recuse Judge OConnor based upon the

discovery that OConnors spouse owns a significant amount of securities in


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ExxonMobil Corporation (Exxon), which through acquisitions that took place

during the pendency of the litigation, came to own the former Hunt Petroleum

Company, the major asset of the MHTE and HHTE trusts. (ROA. 18125, 31770-

31810). The district court denied the motion as untimely filed and on the merits,

and this Court affirmed the district courts decision. (ROA. 18124-18134).

2. Evidence supporting the Camuel 60(b) Motion. On March 24, 2014, Appellant filed the Camuel 60(b) Motion (ROA. 18266-

18751). The evidence that forms the basis of this motion was discovered on

February 27, 2014, when as part of the discovery process of a whistleblower lawsuit

Appellant filed against the Internal Revenue Service, Appellants attorney deposed

Cynthia Camuel, a former long-time attorney for the Internal Revenue Service.

(ROA. 18302-18638).

The background facts leading up to the February 27, 2014 discovery are as

follows: on March 22, 2005, in favor of his children, Hill Jr. executed an irrevocable

disclaimer of most of his interests in the MHTE. (ROA. 7066-7068, 18278); The

effect of Hill Jr.s disclaimer was that when Margaret Hill dies, Appellant and his

sisters become current beneficiaries of the MHTE with the right to receive

discretionary distributions of trust income for 21 years after Margaret Hills death.


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(ROA. 7066-7068, 18278). After 21 years, provided Hill or his sisters are still alive,

they receive the distribution of the trust corpus upon termination of the trust. Id.

On October 9, 2007, Hill Jr. executed an updated disclaimer that

reaffirmed the original March 22, 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

HHTE. (ROA. 11588-11592). After Hassies Hunts death in 2005, Hassie Hunts

Estate attempted to conceal from the IRS the fact that Hassie had exercised a

general power of appointment over the HHTE by devising his interest to Margaret

Hills descendants in his will. (ROA. 25606-25609). The exercise of a general

power of appointment constituted a taxable event which, if disclosed to the IRS,

would have required Hassie Hunts Estate to pay in excess of $100 million in

additional taxes. (ROA. 18279). However, Hill Jr.s original 2005 disclaimer

explicitly stated that Hill Jr. was exercising a general power of appointment with

respect to the MHTE. (ROA. 7066-7068). Since the MHTE instrument is

identical to the HHTE instrument, Hill Jr.s reference to a general power was

directly contrary to the position that the family was taking in connection with the

HHTE. Hill Jr.s updated 2007 disclaimer (which bore a March 2005 date)


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removed all reference to a general power of appointment, with the hope that the

HHTE might get under the radar screen of the IRS. (ROA. 12261-12262).

After Margaret Hills death on June 14, 2007, all parties acted on the validity

of this disclaimer. Then in pleadings in state court filed four months after

Margarets death, by asserting that he had been incompetent at the time he

signed the original MHTE disclaimer in 2005, Hill Jr. sought to declare invalid the

irrevocable disclaimers that made Appellant and his siblings current beneficiaries of

the MHTE. (ROA. 11592, 19160-19347). Appellant then filed the suit referenced

above, seeking various forms of relief, including a declaration of his beneficiary

status as to the MHTE and the HHTE, along with injunctive relief requiring

certain of the defendants to make available trust documents that he was entitled to

review because of his beneficiary status. (ROA. 276-321, 18124-18125).

A key issue in the litigation in the district court was whether the MHTE

disclaimers signed by Hill Jr. were valid and enforceable. (ROA. 18280). On

September 3, 2009, Appellant filed a motion for partial summary judgment as to

whether he was a current beneficiary of the MHTE because of Hill Jr.s execution

of the two virtually identical irrevocable disclaimers, the first in 2005, and the

updated disclaimer from 2007. (ROA. 7055-7188). Hill Jr. opposed Appellants

motion, and submitted his own affidavit and an affidavit from his employee, Joyce


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Waller, falsely attesting that both disclaimers were executed on March 22, 2005.

(ROA. 21400-21434, 21461-21463). Hill Jr. asserted that he had been incapacitated

in 2005, and was therefore not competent to sign a valid disclaimer at that time.

(ROA. 21371-21393, 21400-21434, 21461-21463). Judge OConnor found that Hill

Jr.s submissions created a genuine issue of material fact as to whether the

disclaimers were valid, and therefore denied Appellants motion. (ROA. 9041-

9054).

After the Court denied Appellants motion for partial summary judgment,

Appellant submitted new evidence demonstrating that the updated disclaimer had

indeed been created in 2007, and that Hill Jr. 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. (ROA.

25032-25108). This evidence included deposition testimony from Hill Jr.s

longtime confidante, Ivan Irwin, Jr., that had been obtained moments before

Appellants motion for summary judgment was denied in December 2009. (ROA.

25055-25108).

After an evidentiary hearing, on February 16, 2010, Judge OConnor

sanctioned Hill Jr. for submitting summary judgment materials in bad faith and


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with the intent of committing fraud on the Court, and for intentionally [lying]

under oath. (ROA. 10745-10784, 11392-11398).

The primary issue in Appellants Camuel 60(b) Motion was what rights

Appellant has with respect to the HHTE. Appellant has long believed that Hill Jr.

had also signed a disclaimer for both the MHTE and the HHTE in favor of

Appellant and his sisters. (ROA. 255581-25582). Since the HHTE contained

approximately $1 billion in assets at the time of Hassies death in 2005, a disclaimer

in favor of Appellant would potentially have been worth $100 million or more to

Appellant and his children. (ROA. 18491-18492).

The Defendants repeatedly represented to the district court, other courts,

and to Appellant that Appellant had no interest in the HHTE, and that no

disclaimers existed with respect to the HHTE. For instance, in a responsive

pleading entitled Answer of Albert G. Hill, Jr. to Trustees Motion for Summary

Judgment that Hill Jr. filed on March 24, 2009 with the Dallas Probate Court

Number 2, Hill Jr. stated, There is nothing to indicate that (Appellant) will ever

rise to the status of beneficiary, per stirpes of Margaret Hunt Hill. (ROA. 18640).

In fact, in this sentence, Hill Jr. specifically underlined the word ever. (ROA.

18640). In the same document, second page, Hill Jr. stated, Petitioner


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(Appellant) was intentionally omitted from any benefits of the (HHTE), and will

never rise to the status of being a beneficiary of said (HHTE). (ROA. 18641).

On July 2, 2009, John Creecy, then the trustee of the HHTE, filed a motion

for summary judgment in the Dallas Probate Court Number 2. (ROA. 18645).

Creecy alleged that Appellant did not have standing regarding the HHTE. (ROA.

18645). Creecy alleged that Appellant was not an interested person to the

HHTE because Appellant: (1) was not a current beneficiary of the HHTE; (2) a

vested remainder beneficiary of the HHTE; (3) was not a beneficiary of the HHTE

at all; and (4) had no interest in the HHTE at all. (ROA. 18645). On August 18,

2009, the Dallas Probate Court Number 2 granted Creecys motion for Summary

judgment, finding and ordering that Appellant had no standing with respect to the

HHTE. (ROA. 18672). And based upon these representations, the Dallas Probate

Court Number 2 dismissed Appellants claims relating to the HHTE on the basis

that he purportedly lacked standing because he was not a beneficiary of the trust.

(ROA. 18672).

The Camuel deposition arose out of a whistleblower petition filed by

Appellant in the United States Tax Court. (ROA. 18542-18543). Appellant argued

that certain members of his family took actions that were designed to evade taxes

that were owed by Hassies Estate relating to the HHTE. (ROA. 18542-18546).


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Appellant provided information concerning this tax evasion to the IRS in early

2008, and the IRS subsequently recovered more than $100 million in additional

taxes from Hassies Estate relating to the HHTE based upon the IRSs

determination that the HHTE was part of Hassies Estate due to the fact that

Hassie had exercised his power of appointment over the HHTE in his will. (ROA.

18494-18497). Appellant remains in litigation with the IRS concerning whether

information he provided assisted or led to the collection of those additional taxes.

(ROA. 18542-18543).

During the deposition, Camuel testified that she met with representatives of

Hassies Estate in 2008, who 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. (ROA. 18472, 18560). 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 at the time represented Tom

Hunt, the executor of Hassies estate, which included the HHTE. (ROA. 18560,

18561). When the trustee attorneys provided Camuel this information in 2008,

Tom Hunt was a defendant in the district court case in his capacities as both the

executor of Hassies estate and the Trustee of the HHTE. (ROA. 18326-18327).


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Until Camuels deposition was taken on February 27, 2014, Appellant was

unaware that anyone had ever represented that a written disclaimer had been

signed by Hill Jr. to any of his interest in the HHTE. (ROA. 18301, 18298). As

indicated above, due to repeated representations by Hill Jr. and some of the other

defendants, until February 27, 2014, Appellant was led to believe that no disclaimer

to the HHTE was ever signed by Hill Jr. (ROA. 18298).

Before agreeing to settle this case as memorialized in the GSA, Appellant

had done everything he knew to determine whether Hill Jr. had disclaimed any

portion of his interest in the HHTE. (ROA. 18298). Appellants attorneys had

conducted extensive discovery trying to obtain a copy of any such disclaimer.

(ROA. 18298). No copy of the disclaimer was ever acknowledged to exist, much

less produced by Hill Jr. or other defendants during the underlying litigation.

(ROA. 18298). Based upon the continual denials of any disclaimer of any portion of

Hill Jr.s interest in the HHTE, and in the lack of evidence of any such disclaimer,

Appellant was led to believe that Hill Jr. had not disclaimed any portion of his

interest. (ROA. 18298). In reaching this belief, Appellant relied upon these

continued representations by Hill Jr. and other defendants. (ROA. 18298, 28792,

28793). As a result, Appellant gave up his and his childrens interest in

approximately $100 million in trust assets. (ROA. 18298). Finally, had Appellant


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known that the trustees attorneys represented to the IRS that Hill Jr. had executed

a written disclaimer as to his interest in the HHTE, Appellant would not have

agreed to settle the litigation. (ROA. 18299).

3. Opinion of the District Court denying the Camuel 60(b) Motion In the Camuel 60(b) Order, the district court acknowledged the following

evidence in the Camuel deposition: (1) when asked who told her that Hill Jr.

executed a disclaimer with respect to his interest in the Hassie trust in favor of

Appellant, Camuel mentioned that she may have seen this in a newspaper article,

but the Estate told her that there was a disclaimer executed. (ROA. 18783,

18784). Based upon this, the district court found that it is exceedingly clear to

the court that the testimony of Camuel is not as Plaintiff suggests new evidence

that establishes that there was a heretofore concealed disclaimer regarding the

Hassie estate. Instead, Camuel apparently believed that the newspaper articles and

litigation concerning the disclaimer in the Margaret Hunt Hill estate instead

referred to the Hassie estate. (ROA. 18784). The court further found that [T]he

IRS attorneys fuzzy recollection of information that she read in the newspaper

which shows her confusion about the background of the disclaimer dispute is a

thin reed upon which to base a claim of fraud and to reopen the final judgment

entered into nearly four years ago. (ROA. 18784). And the district court found


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that [T]he hearsay testimony upon which (Appellant) relies establishes, at most,

that Camuel believed that she read a newspaper article about, and discussed,

litigation regarding a disclaimer by Al Jr., but that she had never seen such a

disclaimer and had no independent knowledge of its existence. (ROA. 18784). As

a result, on their face, (Appellants) contentions are insufficient to justify the

extraordinary relief of Rule 60(b). (ROA. 18784).

The district court also denied Appellants request for additional discovery

into this issue because (Appellant) has already had extensive opportunity to

conduct discovery into the existence of any disclaimer regarding the Hassie estate.

No further discovery is warranted and none will be allowed. (ROA. 18785).

4. Judge OConnor recuses himself, and then six other district judges recuse themselves.

After several years of litigation on the issue of whether Judge OConnor

should have recused himself because the majority of his net worth was in the Exxon

securities (the value of which doubled while his wife worked there and his presiding

over the case), on May 22, 2013, without any explanation, Judge OConnor recused

himself from the case below and the severed cases (2269 and 4599). (ROA. 18119).

Since March 12, 2012 when Appellant filed his motion to recuse OConnor and

leading up to May 22, 2013, when Judge OConnor recused himself, no parties had

been added to the case, and one hearing had been held. (ROA. 140-152, 20533-


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20546, 18118). The only substantive order entered by the district court between

March 12, 2012 and May 22, 2013 was Judge OConnors order dated May 15,

2012, in which Judge OConnor denied the motion to recuse. (ROA. 17836, 20537).

After Judge OConnor recused himself, the cases were assigned to Judge

Barbara Lynn, who recused herself on the same day. (ROA. 18120). The cases

were assigned to Judge Jorge Solis, and after entering one substantive ruling (ROA.

18182-18192),3 on September 26, 2013, Judge Solis recused himself. (ROA. 18199).

The cases were assigned to Judge David Godbey, and on October 1, 2013, Judge

Godbey recused himself. (ROA. 18202). The cases were assigned to Judge Jane

Boyle, who recused herself on October 2, 2013. (ROA. 18203). That same day,

both Judge Sidney Fitzwater and Judge Ed Kinkeade recused themselves. (ROA.

18204, 18205). The cases were finally assigned to Judge Sam Lindsay, who as of the

date of the filing of this Brief has not recused himself.

5. Appellants OConnor 60(b) Motion On June 28, 2013, Appellant filed the OConnor 60(b) Motion. (ROA. 35171-

35307). The central point of Appellants motion was that if Judge OConnors

recusal was based upon his Exxon holdings, he should have recused himself long

before, and certainly before he conducted the ex parte meeting with Appellant in

3 Judge Soliss ruling is presently under appeal in cause number 13-10939.


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April 2010 in which he encouraged Appellant to settle the case. (ROA. 35176,

35265-35266). Because rulings entered after the point at which a district judge

should have recused itself are subject to vacatur, which includes the GSA entered

on May 13, 2010 (ROA. 18125), Appellant should have been granted relief under 28

U.S.C. 455 and Federal Rule of Civil Procedure 60(b). (ROA. 35177). In the

alternative, Appellant argued that he should be permitted to conduct discovery into

the reasons for Judge OConnors recusal before the OConnor 60(b) Motion is

resolved. (ROA. 35177).

Appellant argued that if Judge OConnors recusal concerns his financial

interest in Exxon, the recusal should have taken place when the Lanier Law Firm

raised the Exxon conflict with Judge OConnor in December 2009, which was well

before Judge OConnor held the ex parte meeting with Appellant in April 2010 and

pressured him to settle the case. (ROA. 35196). Citing the Liljeberg factors,

Appellant argued that the untimely recusal would clearly warrant relief under Rule

60(b). (ROA. 35196).

6. The district court denies Appellants OConnor 60(b) Motion In the OConnor 60(b) Order, the district court found that (Appellant)

speculates that because Judge OConnor did not identify a basis for recusal, the

logical explanation for recusal is that he either suddenly determined that his


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equity ownership in Exxon created a recusable conflict or realized (but did not

disclose) that he had another conflict that predated the March 2012 filing of the

initial recusal motion. (ROA. 18773). The district court further found that

(Appellant) provides no additional evidence to establish that Judge OConnor

violated section 455 by failing to recuse himself earlier; instead, Plaintiff seeks leave

to conduct discovery, in the form of written interrogatories or a deposition of Judge

OConnor concerning the nature and timing of the conflict that resulted in his

decision to recuse. (ROA. 18773). The district court concluded that Appellants

Rule 60(b) motion is an attempt to violate the mandate rule and obtain a ruling

contrary to the final determination of the Fifth Circuit on this issue. (ROA.

18775).

7. Appellant files the Toliver Recusal Motion On May 2, 2013, Appellant filed a motion to recuse Magistrate Judge

Toliver. (ROA. 18099). The basis of the motion is the relationship between Judge

Toliver and former Dallas County First Assistant Dallas District Attorney Terri

Moore. (ROA. 18102-18106). In prior pleadings, Appellant referenced evidence

showing that Lisa Blue influenced Dallas District Attorney Craig Watkins to obtain

indictments against Appellant and his wife, Erin Hill, on bogus mortgage fraud

charges pushed forth by Hill Jr., and just two weeks before Blue, Baron, and


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Maloufs (BAM) $50 million attorney fee claims against Appellant and Ms. Erin

Hill. were set for trial. (ROA. 18102). The indictments against Ms. Erin Hill were

dismissed by the Dallas DAs office, and the indictments against Appellant were

dismissed by the district court due to prosecutorial misconduct. (ROA. 35191).

Terri Moore is a material witness in the case before this Court because she was

deeply involved in the process of obtaining these bogus indictments against

Appellant and Ms. Erin Hill. (ROA. 18102). Moore instructed the prosecutor who

was primarily handling the investigation, Assistant District Attorney Stephanie

Martin, to continue the investigation even though the purported victim (lender)

indicated it was not interested in pursuing charges, and Martin had expressed

doubts about whether indictments could be obtained. (ROA. 25166-25182). Moore

and Lisa Blue were in close and frequent telephone contact from spring through

summer of 2010 (with two calls between Moore and Blue on April 16, 2011, the eve

of the attorneys fees trial), during which time the Dallas District Attorneys Office

was investigating Hill Jr.s allegations against Appellant and Ms. Erin Hill. (ROA.

18102). After Moore left the District Attorneys Office, Craig Watkins retained

Moore, Blue, and Malouf to jointly represent Dallas County on a contingent fee

basis in a multi-million dollar lawsuit (MERSCORP). (ROA. 18103).


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On August 23, 2012, Judge Toliver recused herself in the MERSCORP case

because an attorney of record for the plaintiffs is a close friend. (ROA. 18113).

Judge Toliver claimed that she was recusing herself to avoid the appearance of

impropriety. (ROA. 18113). Although the recusal notice does not identify which

of the several attorneys representing Dallas County the Court has a close

relationship with, Appellant asserted that: (1) Judge Toliver and Moore previously

worked closely together; (2) Moore was Judge Tolivers supervisor for several

years in the Tarrant County District Attorneys Office; (3) Moore previously

handled the prosecution of a defendant who was found guilty of murdering the

Judge Tolivers uncle, Otis Flake; and (4) Moore recently lobbied for Judge Toliver

to be appointed as an Article III federal district court judge. (ROA. 18105-18106).

8. The district court denies the Toliver Recusal Motion. In denying the Toliver Recusal Motion, the district court found that

Appellant failed to establish that Judge Toliver abused her discretion or that her

determination regarding recusal was clearly erroneous or contrary to law. (ROA.

18766). The district court further found that [E]ven assuming the facts alleged by

(Appellant) are true, the court finds as a matter of law that the friendship alleged to

exist between..Toliver and...Moore is not enough to establish a basis for recusal

under 28 U.S.C. 455. (ROA. 18766). The district court further found that


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(Appellant) failed to show that this is a situation in which (Tolivers) impartiality

might reasonably be questioned, as friendship alone is not sufficient to disqualify

under 28 U.S.C. 455(a), and (Appellant) did not allege facts to suggest that

(Toliver) is disqualified under the enumerated circumstances set forth under 28

U.S.C. 455(b). (ROA. 18766).

The district court further rejected Appellants argument that the

appearance of impropriety that requires recusal due to Tolivers voluntary

recusal in the MERSCORP case because [F]rom what the court can

ascertain...Toliver was not required by law to recuse herself in the MERSCORP

litigation, as no showing has been made by (Appellant) that a reasonable person

cognizant of all relevant circumstances would hold a legitimate doubt as to

Tolivers impartiality. That Toliver recused herself, apparently in an abundance of

caution, in another case involving Moore is of no moment to the courts

determination of whether she is required to do so in this matter. (ROA. 18766-

18768). To support its findings and order, the district court cited Parrish v. Bd. of

Commrs of Ala. State Bar, 524 F.2d 98, 104 (5th Cir. 1975) (Judges friendship

with defendants, witnesses, or defense counsel, standing alone, does not require

recusal) and Henderson v. Dept of Pub. Safety, 901 F.2d 1288, 1296 (5th Cir.


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1990) (Friendship between a judge and a lawyer appearing before that judge does

not compel recusal).


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VIII. Summary of the Arguments The following is the summary of the arguments [See Fed. Rule App. Proc.

28(a)(10) (2014)]: First, Appellant will argue that the district court abused its

discretion when it denied Appellants Camuel 60(b) Motion because the testimony

of Camuel is new evidence that establishes that there may be concealed irrevocable

disclaimers and fraud regarding the Hassie estate. At a minimum, Appellant is

entitled to discovery on this issue, and the district court abused its discretion by

denying Appellants request for discovery.

Second, Appellant will argue that the district court abused its discretion

when it denied Appellants OConnor 60(b) Motion because: (1) the motion is not

foreclosed by the mandate rule, and (2) without the opportunity to conduct at least

some limited discovery as to why OConnor recused himself without explanation

after refusing to do so when Appellant requested, it is impossible to provide

additional evidence to establish that OConnor violated 28 U.S.C. 455 by failing

to recuse himself earlier.

Finally, Appellant asks if a federal judges close relationship with a person,

who is a lawyer on Case A, causes the judge to determine under 28 U.S.C. 455

that recusal is required in Case A due to the appearance of impropriety, would

recusal of the federal judge also be required in Case B where the same person is a


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material witness? Appellant will argue that the judge is estopped from denying the

existence of the appearance of impropriety in Case B (Appellants case).


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IX. Issues with Argument and Authorities 1. Issue One: The district court abused its discretion when it denied

Appellants Camuel 60(b) Motion because the testimony of Camuel is new evidence that establishes that there may be concealed irrevocable disclaimers and fraud regarding the Hassie estate. At minimum, Appellant is entitled to discovery on this issue, and the district court abused its discretion by denying Appellants request for discovery.

A. Standard of review The decision to grant or deny relief under Rule 60(b) lies within the sound

discretion of the district court and will be reversed only for abuse of that

discretion. Edwards v. City of Houston, 78 F.3d 983, 995 (5th Cir. 1996) (en

banc); Alvestad v. Monsanto Co., 671 F.2d 908, 912 (5th Cir. 1982). A district

court abuses its discretion if it bases its decision on an erroneous view of the law or

on a clearly erroneous assessment of the evidence. Kennedy v. Texas Utils., 179

F.3d 258, 265 (5th Cir. 1999).

B. Rule 60(b) Appellant brought the Camuel 60(b) Motion under Federal Rule of Civil

Procedure 60(b)(2), (3), and (6). Rule 60(b)(2) provides that a district court may

grant a party relief from final judgment based on newly discovered evidence

which by due diligence could not have been discovered in time to move for a new

trial under Rule 59(b). Fed. Rule Civ. Proc. 60(b)(2) (2014).


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Under Rule 60(b)(2), to succeed on a motion for relief from judgment based on

newly discovered evidence, our law provides that a movant must demonstrate: (1)

that it exercised due diligence in obtaining the information; and (2) that the

evidence is material and controlling and clearly would have produced a different

result if present before the original judgment. Goldstein v. MCI Worldcom, 340

F.3d 238, 257 (5th Cir. 2003). A judgment will not be reopened if the evidence is

merely cumulative or impeaching and would not have changed the result. Trans

Mississippi Corp. v. United States, 494 F.2d 770, 773 (5th Cir. 1974). A motion

brought under Rule 60(b)(2) may be granted only if the evidence is such that a

new trial would probably produce a new result. Ag Pro, Inc. v. Sakraida, 512 F.2d

141, 143 (5th Cir. 1975), reversed on other grounds, 425 U.S. 273 (1976); Ledet v.

United States, 297 F.2d 737, 739 (5th Cir. 1962).

Rule 60(b)(3) provides for relief based on fraud...misrepresentation, or

other misconduct of an adverse party. Fed. Rule Civ. Proc. 60(b)(3) (2014). 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 prevented the moving party from fully and fairly presenting his case.

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

Servs. One Ltd. Partnership v. Peyton Place, 62 F.3d 767, 772 (5th Cir. 1995). This


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rule 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. City of New Orleans, 731 F.3d at 442.

The moving party has the burden of proving the misconduct by clear and

convincing evidence. Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir.

1978). Rule 60(b)(3) is aimed at judgments which were unfairly obtained, not at

those which are factually incorrect. Id. The rule is remedial and should be

liberally construed. Id. at 1346

Rule 60(b)(6) provides for relief based on any other reason justifying relief

from the operation of the judgment. Fed. Rule Civ. Proc. 60(b)(6) (2014). The

purpose of Rule 60(b) is to balance the principle of finality of a judgment with the

interest of the court in seeing that justice is done in light of all the facts. Seven

Elves, Inc. v. Eskenazi, 635 F.2d 396, 401 (5th Cir. 1981); Harrell v. DCS Equip.

Leasing Corp., 951 F.2d 1453, 1458 (5th Cir. 1992) (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.).

While finality of judgments is an important consideration, the goal of finality

must yield, in appropriate circumstances, to the equities of the particular case in

order that the judgment might reflect the true merits of the cause. Seven Elves,


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635 F.2d at 401. In this light, it is often stated that the rule should be liberally

construed in order to do substantial justice. Id. This Court has prescribed eight

factors for consideration in a Rule 60(b) motion: (1) That final judgments should

not lightly be disturbed; (2) that the Rule 60(b) motion is not to be used as a

substitute for appeal; (3) that the rule should be liberally construed in order to

achieve substantial justice; (4) whether the motion was made within a reasonable

time; (5) [relevant only to default judgments]; (6) whether -- if the judgment was

rendered after a trial on the merits -- the movant had a fair opportunity to present

his claim or defense; (7) whether there are intervening equities that would make it

inequitable to grant relief; and (8) any other factors relevant to the justice of the

judgment under attack. Seven Elves, Id. at 402; Federal Deposit Ins. Corp. v.

Castle, 781 F.2d 1101, 1104 (5th Cir. 1986).

C. Appellant exercised due diligence in attempting to uncover the fraud but due diligence could not have discovered the existence of a disclaimer by Hill Jr. on Hassies estate.

A movant who makes a claim under any subsection of Rule 60 must show

that prior to entry of the final judgment that the movant complains of, the movant

exercised due diligence during the discovery period. See Fed. Rule Civ. Proc.

60(b)(2) & (6); Inter Financing Exchange v. Bartlett & Co., 659 F.2d 1320, 1321

(5th Cir. 1981); United States v. 329.73 Acres of Land, 695 F.2d 922, 926 (5th Cir.


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1983). Diligence is defined as [A] continual effort to accomplish something, or

care; caution; the attention and care required from a person in a given situation.

Vehicle Removal Corp. v. Lopez (In re Lopez), 269 B.R. 607, 613 (N.D. Tex.

2001). Diligence is also defined as persistent activity, resolution, effort,

perseverance, tenacity, determination, doggedness, zeal, and vigor, prudence,

carefulness, and vigilance Wests Legal Thesaurus / Dictionary, 235 (West

1986). The antonyms of diligence are laziness or negligence. Id.

Due diligence is defined as the diligence reasonably expected from, and

ordinarily exercised by a person who seeks to satisfy a legal requirement or to

discharge an obligation. Id. See Blacks Law Dictionary, 468-469 (7th ed. 1999).

Or, the prudence and effort that is ordinarily used by a reasonable person under

the circumstances. Wests Legal Thesaurus / Dictionary, 261 (West 1986).

Reasonable means action that is suitable under the circumstances. Wests Legal

Thesaurus / Dictionary, 632 (West 1986). The opposite of reasonable is

unreasonable, which logically means action that is not suitable under the

circumstances. Id.

Appellant exercised due diligence in attempting to uncover the fraud, but

due diligence could not have discovered the existence of a disclaimer by Hill Jr. on

Hassies estate when some of the opposing parties did not disclose the existence of


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the disclaimer to both Appellant and the district court. Appellant did everything

possible to discover the existence of the disclaimer on the trust, but he and the

courts were repeatedly told that no such disclaimer exists. This qualifies as fraud

under Federal Rule of Civil Procedure 60(b)(3) (see above).

Before the entry of the final judgment on November 8, 2010 (ROA. 18125,

28757-28887), Appellant raised the issue of disclaimers on the Hassie trust many

times. In a Motion for In Camera Review of Materials Allegedly Protected by the

Attorney Client Privilege filed on March 24, 2010, Appellant asserted that there

may have been other disclaimers executed (and destroyed) related not only to the

MHTE, but also to the Hassie Trust. (ROA. 25581-25585). Appellant noted that

his sister, Heather Washburne, stated in her deposition that disclaimers were

referenced in her prenuptial agreement and that Hill Jr. has stridently opposed

(Appellants) effort to obtain Al Jr.s allegedly sealed divorce file that contains

financial information. (ROA. 25581-25582).

In response to Appellants discovery requests to defendant Wikert for any

documents, notes, or drafts pertaining to disclaimer to the Hassie trust, Wikert

made a number of objections, represented that she would produce the documents,

but produced no documents related to a disclaimer the Hassie Trust. (ROA.

18677-18681). To the same requests for discovery made by Appellant on defendant


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Lyda Hill, she responded in the same manner as Wikert. (ROA. 18683-18689).

Finally, to the same requests for discovery made by Appellant on Hill Jr., he

responded in the same manner as Wikert and Lyda Hill. (ROA. 18691-18696).

In an October 13, 2009, deposition, when asked whether in 2005 she saw

even a draft of disclaimers on the Hassie Trust, defendant Wikert replied that she

had not, and that she had no information regarding whether any person was

preparing draft disclaimers. (ROA. 18700-18702).

In a December 17, 2009, deposition, 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. (ROA. 18733).

Based upon these false representations, Appellant entered into an agreement

acknowledging that Hill Jr. never disclaimed his interest in the Hassie Trust. In the

Final Judgment, the district court found, declared that there is no disclaimer by

Al Jr. as to any interest in the HHTE. (ROA. 28792). As a result, Appellant

exercised due diligence in order t

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