On November 16, 2005 a
Motion,Ex Parte
was filed
involving a dispute between
Clark, Carolyn,
Flitsch, James,
and
Clark, Diane M,
Clark, Kevin J,
Earl, Steven C.,
Graham, James E,
Guardino, Leonard,
Seigel, Lisa R,
Stilwell, Earl & Apostolakis, Llp,
Wilkinson, Kristen Diane,
Wilkinson, Kristin Diane Wilkinson-Guardino, Kristin,
for Other Civil Case >$100,000 but <$200,000
in the District Court of Montgomery County.
Preview
22-07-09262
CAUSENO. 119-06-07875
IN RE THE CAROLYN S. CLARK § IN THE DISTRICT COURT OF
§
IRREVOCABLE LIVING TRUST § MONTGOMERY COUNTY, TEXAS
U/T/A JULY 28, 2017 § 457 JUDICIAL DISTRICT
PLAINTIFF’S MOTION TO SEVER RUST REFORMATION CLAIMS
COME NOW JAMES FLITSCH (“Flitsch”), Co Trustee of The Carolyn S. Clark Irrevocable
Living Trust (“Trust”) dated on or about July 28, 2017, and CAROLYN S. CLARK (“Carolyn”) (Flitsch
and Carolyn shall hereinafter be collectively referred to as “Plaintiffs”), filing this Motion to Sever and
would show as follows:
UMMARY__ ROUNDS
This case comes back to the Court, remanded again) after third failed attempt to remove
the case by Kristin Wilkinson Guardino (“Wilkinson”) and Leonard Guardino (“Guardino”) (collectively
“Defendants”) If history has taught us anything about the Defendants it is that the Court and the Plaintiffs
can justifiably anticipate more shenanigans by the Defendants to delay this case moving forward _n the
interest of justice for the convenience of the parties and the Court, and to prevent the Defendants from
further interfering with the issue the Plaintiffs seek to sever the cause of action requesting to modify,
reform or terminate the rust
The Defendants are neither trustees not beneficiaries of the Trust but they do owe it
money; they are not a party and have no standing or interest on the issue of reformation the Trust or
management by trustees While the Plaintiffs have prevailed in their request for declaratory relief against
Despite both the Federal Court and this Court imposing sanctions against the Defendants for their repeated baseless and
frivolous attempts to delay by filing repeated removals, Defendants filed for a stay of all proceedings, which was denied by
the Fifth Circuit Cou t of Appeals just days after it was filed. Defendants then failed to appear at a hearing before this Court,
claiming the Court has no jurisdiction in the matter.
Plaintiff’s Motion to Sever
Pagethe Guardinos, attorney’s fees under the DJA still remain. The Plaintiffs remaining declaratory relief
claim for attonrneys’ fees against the Guardinos and the Plaintiffs claims for theft, money had and re-
ceived, unjust enrichment, and for a constructive trust as may be appropriate (“Bad Acts Claims”) can
then be litigated as efficiently as the Defendants will allow, without further delaying a cause which they
hould not be allowed to insert themselves into
Plaintiffs Third Amended Petition asserts six (6) causes of ction and the chart below iden-
tifies the treatment of the same and Plaintiffs’ request as to such claim:
Current Status Request to Sever Into
a New Cause Num-
ber
Cause of Action in
Am. Pet.
1. Request to modify, reform or termi- | Undecided Yes
nate the trust (pp. 15
2. Declaratory relief as to the identity of | Decided on 8
20; attorney’s
trustees (pp. 13
fees still pending.
3. Theft Liability Act (pp. 16
Undecided; motion for summary
judgment pending
4. Money had and received (pp. 17
Undecided; motion for summary
judgment pending
5. Unjust enrichment (pp. 18
Undecided; motion for summary
judgment pending
6. Constructive Trust (pp. 19
Undecided; motion for summary
judgment pending
The claims for reformation or termination now involve parties other than the Guardinos.
This claim may proceed without them. Severing this claim into a new cause number will free the refor-
mation claims from the Guardinos’ delay tactics.
The Bad Acts claims (being claims
they are all specific
ment by which they misappropriated trust funds totaling approximately $9
6, above) should be retained in this cause number because
the Defendants nefarious acts of theft, money had and received, and unjust enrich-
Severing these
Plaintiff’s Motion to Sever
Pageclaims will prevent Defendants from further interfering with and delaying the matters of the Trust; a trust
to which they are merely debtors
RGUMENT UTHORITIES
A court may sever part of a case before the case is submitted to the trier of fact. Tex. R.
Civ. P. 41; State Dep’t of Highways & Pub. Tranp. v. Cotner, 845 S.W.2d 818, 819 (Tex. 1993).
A lawsuit may be severed into two suits if the severed cause is not so interwoven with the
remaining action that they involve the same facts and issues. Jn re State, 355 S.W.3d 611, 613 (Tex.
2011). When considering whether a cause of action should be severed, the court’s discretion is guided
by the following controlling reasons: to do justice, and further the convenience of the parties and the
court. /d. at 613.
Currently, there are two separate cases before the court; this case, Cause No. 19-06-07875
(“Trust Case”) and Cause No. 19-07-10233 (“Malpractice Case”). There are three (3) distinct sets of
issues pending before this Court.
In the Trust Case cause of action 1 should be severed so that under a new 2022
cause number it can be expeditiously adjudicated without further interference from
the Defendants. Severing and resolving this claim will also help the court move
the Malpractice Case forward. Determining the amount of costs and damages
resolving the trust reformation required for calculating the damages in the al-
practice ase.
The remaining claims (2 6, above) for declaratory relief fees, theft, money had and
received, unjust enrichment, and a constructive trust, should be maintained under
this, the current cause numbe
Plaintiff’s Motion to Sever
PageThe Malpractice Case involves distinct and separate malpractice claims against
Wilkinson and her law firm. However, the damages suffered by the Plaintiffs can
only be calculated after the trust reformation matter is resolved because the costs
and amounts necessary to reform or modify the Trust are part of the damages in
the malpractice action. Thus, severance of the trust reformation claims is in the
best interests of the court and the litigants.
This Court dispensed of the cause of action related to the determination of the trustee via
summary judgment on August 21, 2020. This leaves only the issue of modification, reformation, or ter-
mination of the trust to be remedied. Issues th Defendants have no standing in whatsoever. Y , the
Court has been unable to move forward on cause of action because of the interference by the De-
fendants as they continue to fight and file removals using, in part, the Bad Acts Claims as an alleged
basis.
The Bad Acts Claims against the Defendants are now distinct and separate from the oper-
ation of the Trust pursuant to the aforementioned summary judgment ruling in favor of the Plaintiffs
The Court, in the interest of justice should grant Plaintiffs request for severance as the severance would
prevent further interference by the Defendants, avoid prejudice, and further convenience the Court in
serving the remaining litigants.
II _RAYER
WHEREFORE, PREMISES CONSIDERED, Defendants pray that this Court grant this Motion
and sever the issue of modification, reformation, or termination of the trust into a separate cause of action;
retain the remaining claims against the Defendants in this cause number, and grant Plaintiffs all such
other and further relief to which Plaintiffs may be entitled.
Plaintiff’s Motion to Sever
PageRespectfullysubmitted,
STILWELL, EARL & APOSTOLAKIS, L.L.P.
/s/Steven C. Earl
Steven C. Earl
State Bar No. 24002028
James E. Graham
State Bar No. 24102973
1400 Woodloch Forest Dr., Suite 590
The Woodlands, Texas 77380
Telephone: 281/419-6200
Telecopier: 281/419-0250
steven@woodlandstxlawfirm.com
@woodlandstxlawfirm.com
ATTORNEYS FOR LAINTIFF
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the day of June, 2022, a true and correct copy of the
foregoing instrument has been sent in compliance with Rules 21 and 21a of the Texas Rules of Civil
Procedure.
VIA E FILE
Kristin Wilkinson, Pro Se
Leonard Guardino, Pro Se
PO Box 701188
Houston, Texas 77270-1188
Phone: (713) 561-5616
Fax: (713) 561-5629
kristinwilkinson@use.staratmail.com
Jeanne L. Couture
Magnan Couture, PLLC
245 West 18th Street
Houston, Texas 77008
(713) 678-0499
jeannie@magnancouturelaw.com
Attorney for Kevin J. Clark
By:__/s/Steven C. Earl
Steven C. Earl
Plaintiff’s Motion to Sever
Page
Preview
22-07-09262 CAUSENO. 119-06-07875 IN RE THE CAROLYN S. CLARK § IN THE DISTRICT COURT OF § IRREVOCABLE LIVING TRUST § MONTGOMERY COUNTY, TEXAS U/T/A JULY 28, 2017 § 457 JUDICIAL DISTRICT PLAINTIFF’S MOTION TO SEVER RUST REFORMATION CLAIMS COME NOW JAMES FLITSCH (“Flitsch”), Co Trustee of The Carolyn S. Clark Irrevocable Living Trust (“Trust”) dated on or about July 28, 2017, and CAROLYN S. CLARK (“Carolyn”) (Flitsch and Carolyn shall hereinafter be collectively referred to as “Plaintiffs”), filing this Motion to Sever and would show as follows: UMMARY__ ROUNDS This case comes back to the Court, remanded again) after third failed attempt to remove the case by Kristin Wilkinson Guardino (“Wilkinson”) and Leonard Guardino (“Guardino”) (collectively “Defendants”) If history has taught us anything about the Defendants it is that the Court and the Plaintiffs can justifiably anticipate more shenanigans by the Defendants to delay this case moving forward _n the interest of justice for the convenience of the parties and the Court, and to prevent the Defendants from further interfering with the issue the Plaintiffs seek to sever the cause of action requesting to modify, reform or terminate the rust The Defendants are neither trustees not beneficiaries of the Trust but they do owe it money; they are not a party and have no standing or interest on the issue of reformation the Trust or management by trustees While the Plaintiffs have prevailed in their request for declaratory relief against Despite both the Federal Court and this Court imposing sanctions against the Defendants for their repeated baseless and frivolous attempts to delay by filing repeated removals, Defendants filed for a stay of all proceedings, which was denied by the Fifth Circuit Cou t of Appeals just days after it was filed. Defendants then failed to appear at a hearing before this Court, claiming the Court has no jurisdiction in the matter. Plaintiff’s Motion to Sever Pagethe Guardinos, attorney’s fees under the DJA still remain. The Plaintiffs remaining declaratory relief claim for attonrneys’ fees against the Guardinos and the Plaintiffs claims for theft, money had and re- ceived, unjust enrichment, and for a constructive trust as may be appropriate (“Bad Acts Claims”) can then be litigated as efficiently as the Defendants will allow, without further delaying a cause which they hould not be allowed to insert themselves into Plaintiffs Third Amended Petition asserts six (6) causes of ction and the chart below iden- tifies the treatment of the same and Plaintiffs’ request as to such claim: Current Status Request to Sever Into a New Cause Num- ber Cause of Action in Am. Pet. 1. Request to modify, reform or termi- | Undecided Yes nate the trust (pp. 15 2. Declaratory relief as to the identity of | Decided on 8 20; attorney’s trustees (pp. 13 fees still pending. 3. Theft Liability Act (pp. 16 Undecided; motion for summary judgment pending 4. Money had and received (pp. 17 Undecided; motion for summary judgment pending 5. Unjust enrichment (pp. 18 Undecided; motion for summary judgment pending 6. Constructive Trust (pp. 19 Undecided; motion for summary judgment pending The claims for reformation or termination now involve parties other than the Guardinos. This claim may proceed without them. Severing this claim into a new cause number will free the refor- mation claims from the Guardinos’ delay tactics. The Bad Acts claims (being claims they are all specific ment by which they misappropriated trust funds totaling approximately $9 6, above) should be retained in this cause number because the Defendants nefarious acts of theft, money had and received, and unjust enrich- Severing these Plaintiff’s Motion to Sever Pageclaims will prevent Defendants from further interfering with and delaying the matters of the Trust; a trust to which they are merely debtors RGUMENT UTHORITIES A court may sever part of a case before the case is submitted to the trier of fact. Tex. R. Civ. P. 41; State Dep’t of Highways & Pub. Tranp. v. Cotner, 845 S.W.2d 818, 819 (Tex. 1993). A lawsuit may be severed into two suits if the severed cause is not so interwoven with the remaining action that they involve the same facts and issues. Jn re State, 355 S.W.3d 611, 613 (Tex. 2011). When considering whether a cause of action should be severed, the court’s discretion is guided by the following controlling reasons: to do justice, and further the convenience of the parties and the court. /d. at 613. Currently, there are two separate cases before the court; this case, Cause No. 19-06-07875 (“Trust Case”) and Cause No. 19-07-10233 (“Malpractice Case”). There are three (3) distinct sets of issues pending before this Court. In the Trust Case cause of action 1 should be severed so that under a new 2022 cause number it can be expeditiously adjudicated without further interference from the Defendants. Severing and resolving this claim will also help the court move the Malpractice Case forward. Determining the amount of costs and damages resolving the trust reformation required for calculating the damages in the al- practice ase. The remaining claims (2 6, above) for declaratory relief fees, theft, money had and received, unjust enrichment, and a constructive trust, should be maintained under this, the current cause numbe Plaintiff’s Motion to Sever PageThe Malpractice Case involves distinct and separate malpractice claims against Wilkinson and her law firm. However, the damages suffered by the Plaintiffs can only be calculated after the trust reformation matter is resolved because the costs and amounts necessary to reform or modify the Trust are part of the damages in the malpractice action. Thus, severance of the trust reformation claims is in the best interests of the court and the litigants. This Court dispensed of the cause of action related to the determination of the trustee via summary judgment on August 21, 2020. This leaves only the issue of modification, reformation, or ter- mination of the trust to be remedied. Issues th Defendants have no standing in whatsoever. Y , the Court has been unable to move forward on cause of action because of the interference by the De- fendants as they continue to fight and file removals using, in part, the Bad Acts Claims as an alleged basis. The Bad Acts Claims against the Defendants are now distinct and separate from the oper- ation of the Trust pursuant to the aforementioned summary judgment ruling in favor of the Plaintiffs The Court, in the interest of justice should grant Plaintiffs request for severance as the severance would prevent further interference by the Defendants, avoid prejudice, and further convenience the Court in serving the remaining litigants. II _RAYER WHEREFORE, PREMISES CONSIDERED, Defendants pray that this Court grant this Motion and sever the issue of modification, reformation, or termination of the trust into a separate cause of action; retain the remaining claims against the Defendants in this cause number, and grant Plaintiffs all such other and further relief to which Plaintiffs may be entitled. Plaintiff’s Motion to Sever PageRespectfullysubmitted, STILWELL, EARL & APOSTOLAKIS, L.L.P. /s/Steven C. Earl Steven C. Earl State Bar No. 24002028 James E. Graham State Bar No. 24102973 1400 Woodloch Forest Dr., Suite 590 The Woodlands, Texas 77380 Telephone: 281/419-6200 Telecopier: 281/419-0250 steven@woodlandstxlawfirm.com @woodlandstxlawfirm.com ATTORNEYS FOR LAINTIFF CERTIFICATE OF SERVICE The undersigned hereby certifies that on the day of June, 2022, a true and correct copy of the foregoing instrument has been sent in compliance with Rules 21 and 21a of the Texas Rules of Civil Procedure. VIA E FILE Kristin Wilkinson, Pro Se Leonard Guardino, Pro Se PO Box 701188 Houston, Texas 77270-1188 Phone: (713) 561-5616 Fax: (713) 561-5629 kristinwilkinson@use.staratmail.com Jeanne L. Couture Magnan Couture, PLLC 245 West 18th Street Houston, Texas 77008 (713) 678-0499 jeannie@magnancouturelaw.com Attorney for Kevin J. Clark By:__/s/Steven C. Earl Steven C. Earl Plaintiff’s Motion to Sever Page