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CAUSE NO. 153-232668-08
VIRGINIA 0. KINSEL, as Attorney- § IN THE DISTRICT COURT
in-Fact for J. FRANK KINSEL, §
J. FRANK KINSEL, JR., Individually, §
CAROLE K. EDWARDS, §
Individually, and CATHERINE K. §
COLLINS, Individually §
§
Plaintiffs, §
v. § TARRANT COUNTY, TEXAS
§
JANE 0. LINDSEY, Individually and §
as Co-Trustee of the Lesey B. Kinsel §
Trust, and ROBERT N. OLIVER §
§
Defendants. § 153rd JUDICIAL DISTRICT
PLEA TO THE JURISDICTION AND
REOUEST FOR IN LIMINE HEARING
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, JANE 0. LINDSEY, Individually and in no other capacity,
("Defendant") and files this Request for In Limine Hearing ("Request"), and in support thereof
shows:
BACKGROUND FACTS
1. On September 9, 2008, VIRGINIA 0. KINSEL, as Attorney-in-Fact for J.
FRANK KINSEL, J. FRANK KINSEL, JR., Individually, and CAROLE K. EDWARDS,
Individually, filed their Original Petition and Suit for Declaratory Judgment, and Appliijtion ./!!:
a Temporary Restraining Order and a Temporary Injunction. !2~0
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2. On September 16, 2008, VIRGINIA 0. KINSEL, as Attome~~ J. ;~;;}
FRANK KINSEL, J. FRANK KINSEL, JR., Individually, CAROLE i;j§ow'ilfmsgf:.J
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7
Individually, and CATHERINE K. COLLINS, Individually, ("Plaintiffs")
PLEA TO THE JURISDICfiON AND REQUEST FOR IN LIMINE HEARING PAGEl
5303806v.2 133830/00001
Amended Petition and Suit for Declaratory Judgment and Application for a Temporary
Injunction ("Petition") before any appearances had been made herein by any defendant.
3. In the Petition, Plaintiffs ask this Court to set aside the Fourth and Fifth
Amendments to the Lesey B. Kinsel Trust ("Trust") based on allegations of lack of capacity and
undue influence. In the event Plaintiffs were to succeed on their Petition, the Third Amendment
to the Trust would control. Under the Third Amendment, there are specific bequests of Lesey
Kinsel's 60% interest in the Kinsel Ranch to each of the Plaintiffs. However, neither the original
Trust nor any of its amendments state what would happen to Plaintiffs' bequests if the ranch
were sold prior to Lesey Kinsel's death. In other words, there is no specific bequest in the Trust
or in any of its amendments regarding the proceeds from the sale ofthe ranch, meaning that such
proceeds pass to the residuary beneficiary of the Trust. Other than the gift of Lesey Kinsel's
share of the ranch, the Trust does not leave anything to Plaintiffs.
4. On or about July 24, 2008, the Kinsel Ranch was sold. Lesey Kinsel sold her
60% interest, and the owners of the remaining 40% also sold their interest. Plaintiff J. Frank
Kinsel sold his 10% interest. Catherine K. Collins, as Trustee of a trust for her benefit, sold her
10% interest. Each received more than $500,000.00 in net proceeds.
5. Lesey Kinsel died August 22, 2008. Based on the well-established doctrine of
ademption, since Lesey Kinsel had no interest in the Kinsel Ranch at the date of death, the
bequest to Plaintiffs was adeemed by extinction. Shriner's Hospital for Crippled Children of
Texas v. Stahl, 610 S.W.2d 147 (Tex. 1980). Moreover, the Plaintiffs are not entitled to Lesey
Kinsel's share of the proceeds from the sale of the Kinsel Ranch because there is no provision in
the Trust or in any of its amendments to that effect. Because Plaintiffs are neither Trustees or
beneficiaries of the Trust, they are not interested persons and do not have standing to bring this
action.
PLEA TO THE JURISDICTION AND REOIJEST FOR IN LIMINE HEARING PAGE2
5303806v.2 133830/00001
IN LIMINE HEARING
6. Defendant requests that this Court conduct an in limine hearing on the issue of
Plaintiffs' standing to bring their action. Defendant requests that such a proceeding be
conducted before Plaintiffs are allowed to proceed with their suit. Defendant's challenge is a
jurisdictional plea that must be determined in Plaintiffs' favor before Plaintiffs should be allowed
to conduct discovery or to pursue this action.
7. Defendant is entitled to have this Court conduct the in limine proceeding
immediately. For any person to maintain a suit, it is necessary that they have standing to litigate
the matters at issue. A & W Industries, Inc. v. Day, 977 S.W.2d 738 (Tex. App.- Fort Worth
1998, no pet.).
8. In Day, the Fort Worth Court of Appeals also stated that the burden ofproofis on
the person whose interest is challenged to present sufficient evidence during an in limine
proceeding to prove that he is an interested person. /d. at 741. Therefore, Plaintiffs must prove
that the doctrine of ademption does not apply and that they are entitled to receive the proceeds of
the sale of the Kinsel Ranch. Plaintiffs must carry their burden in order to show that they have
standing to be involved in this suit. Unless Plaintiffs can prove that they have standing, their suit
should be dismissed immediately, because "the law will not allow a 'mere meddlesome intruder'
to interfere with a decedent's estate in which he has no interest." /d., at 741.
9. After a party's standing is challenged, the failure of a trial court to conduct an in
limine hearing is error. James C. Boone, et al., v. Murray LeGalley, eta/., 29 S.W.3d 614, 615
(Tex. App.-Waco 2000, no pet.).
WHEREFORE, PREMISES CONSIDERED, JANE 0. LINDSEY, Individually and in
no other capacity, prays that this Court conduct an in limine proceeding as soon as possible to
determine whether VIRGINIA 0. KINSEL, as Attorney-in-Fact for J. FRANK KINSEL, J.
PLEA TO THE JURISDICTION AND REQUEST FOR IN LIMINE HEARJNG
5303806v.2 133830/00001 PAGE3
FRANK KINSEL, JR., Individually, CAROLE K. EDWARDS, Individually, and CATHERINE
K. COLLINS, Individually have standing to bring its action, that after such hearing the Court
dismiss Plaintiffs' suit; and that the Court award to Defendant such other and further relief to
which it may be entitled.
Respectfully submitted,
JACKSON WALKER L.L.P.
301 Commerce Street, Suite 2400
Fort Worth, TX 6102
817.334.7 35
817.87 5 35
By:::--1=-~::H-+-------
M. e r
State Bar No.
William R. Je ins, Jr.
State Bar No. 00784334
Colin L. Murchison
State Bar No. 24049780
ATTORNEYS FOR DEFENDANT
PLEA TO THE JURISDICTION AND REOUEST FOR IN LIMINE HEARING
5303806v.2 133830/00001 PAGE4
CERTIFICATE OF CONFERENCE
I hereby certify that on September 29, 2008 I conferred with J. Lyndell Kirkley regarding
the merits of this motion. No agreement was reached. eretl this motion is presented to the
Court for a determination.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing document has
been delivered to the following counsel of record, via certified mail, return receipt requested, on
this 29th day of September, 2008:
Via Hand Delivery
J. Lyndell Kirkley
Kirkley & Berryman, L.L.P.
100 N. Forest Park Blvd., Suite 220
Fort Worth, TX 76102
PLEA TO THE JURISDICfiON AND REOUEST FOR IN LIMINE HEARING PAGES
5303806v.2 133830/00001
JACKSON
)W *
WALKER L.L.P.
William R. Jenkins, Jr.
(817) 334-7214
Wjenk.ins@jw.com
ATTORNEYS & COUNSELORS
September 29, 2008
Via Hand Delivery
Sharon Byrd, Clerk
153'd Judicial District Court
Tarrant County Justice Center
401 West Belknap, 7th floor
Fort Worth, TX 76196-0225
Re: No. 153-232668-08; Virginia 0. Kinsel, et al vs. Jane 0. Lindsey
Dear Ms. Byrd:
Enclosed is an original and one copy each of the following:
1. Special Exceptions and Original Answer of Jane 0. Lindsey, Individually, to
Plaintiffs' First Amended Petition and Suit for Declaratory Judgment; and
2. Plea to the Jurisdiction and Request for In Limine Hearing.
Kindly file same and return the file-stamped copies to the undersigned via our courier. Copies of
said documents have been served upon counsel of record, as indicated below. In addition, please
add the Plea to the Jurisdiction and Request for In Limine Hearing to the hearing scheduled in
this cause on Thursday, October 2, 2008 at 9:00a.m.
Thank you for your assistance in this matter. Please feel free to contact me with any
questions you may have. -1 .-.>
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Enclosures
5306275v.l 133830/00001
301 Commerce Street, Suite 2400 Fort Worth, Texas 76102 (817) 334-7200 fax (817)334-7290
www.jw.com Austin Dallas Fort Worth Houston San Angelo San Antonio Member of GLOBALAWSM
September 29, 2008
Page2
cc: Via Hand Delivery
Patricia Cannon, Coordinator
153rd Judicial District Court
Tarrant County Justice Center
401 West Belknap, 7th floor
Fort Worth, TX 76196-0225
Via Hand Delivery
J. Lyndell Kirkley
B. Dan Berryman
Kirkley & Berryman, L.L.P.
100 N. Forest Park Blvd., Suite 220
Fort Worth, TX 76102
5306275v.l 133830/00001
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CAUSE NO. 153-232668-08 VIRGINIA 0. KINSEL, as Attorney- § IN THE DISTRICT COURT in-Fact for J. FRANK KINSEL, § J. FRANK KINSEL, JR., Individually, § CAROLE K. EDWARDS, § Individually, and CATHERINE K. § COLLINS, Individually § § Plaintiffs, § v. § TARRANT COUNTY, TEXAS § JANE 0. LINDSEY, Individually and § as Co-Trustee of the Lesey B. Kinsel § Trust, and ROBERT N. OLIVER § § Defendants. § 153rd JUDICIAL DISTRICT PLEA TO THE JURISDICTION AND REOUEST FOR IN LIMINE HEARING TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, JANE 0. LINDSEY, Individually and in no other capacity, ("Defendant") and files this Request for In Limine Hearing ("Request"), and in support thereof shows: BACKGROUND FACTS 1. On September 9, 2008, VIRGINIA 0. KINSEL, as Attorney-in-Fact for J. FRANK KINSEL, J. FRANK KINSEL, JR., Individually, and CAROLE K. EDWARDS, Individually, filed their Original Petition and Suit for Declaratory Judgment, and Appliijtion ./!!: a Temporary Restraining Order and a Temporary Injunction. !2~0 /fji:,. 15 , -~ --~ <::; (/) ~ .·e; 2. On September 16, 2008, VIRGINIA 0. KINSEL, as Attome~~ J. ;~;;} FRANK KINSEL, J. FRANK KINSEL, JR., Individually, CAROLE i;j§ow'ilfmsgf:.J c:;:, .1::- '::. -..._) f~ th~ Fir_~* 7 Individually, and CATHERINE K. COLLINS, Individually, ("Plaintiffs") PLEA TO THE JURISDICfiON AND REQUEST FOR IN LIMINE HEARING PAGEl 5303806v.2 133830/00001 Amended Petition and Suit for Declaratory Judgment and Application for a Temporary Injunction ("Petition") before any appearances had been made herein by any defendant. 3. In the Petition, Plaintiffs ask this Court to set aside the Fourth and Fifth Amendments to the Lesey B. Kinsel Trust ("Trust") based on allegations of lack of capacity and undue influence. In the event Plaintiffs were to succeed on their Petition, the Third Amendment to the Trust would control. Under the Third Amendment, there are specific bequests of Lesey Kinsel's 60% interest in the Kinsel Ranch to each of the Plaintiffs. However, neither the original Trust nor any of its amendments state what would happen to Plaintiffs' bequests if the ranch were sold prior to Lesey Kinsel's death. In other words, there is no specific bequest in the Trust or in any of its amendments regarding the proceeds from the sale ofthe ranch, meaning that such proceeds pass to the residuary beneficiary of the Trust. Other than the gift of Lesey Kinsel's share of the ranch, the Trust does not leave anything to Plaintiffs. 4. On or about July 24, 2008, the Kinsel Ranch was sold. Lesey Kinsel sold her 60% interest, and the owners of the remaining 40% also sold their interest. Plaintiff J. Frank Kinsel sold his 10% interest. Catherine K. Collins, as Trustee of a trust for her benefit, sold her 10% interest. Each received more than $500,000.00 in net proceeds. 5. Lesey Kinsel died August 22, 2008. Based on the well-established doctrine of ademption, since Lesey Kinsel had no interest in the Kinsel Ranch at the date of death, the bequest to Plaintiffs was adeemed by extinction. Shriner's Hospital for Crippled Children of Texas v. Stahl, 610 S.W.2d 147 (Tex. 1980). Moreover, the Plaintiffs are not entitled to Lesey Kinsel's share of the proceeds from the sale of the Kinsel Ranch because there is no provision in the Trust or in any of its amendments to that effect. Because Plaintiffs are neither Trustees or beneficiaries of the Trust, they are not interested persons and do not have standing to bring this action. PLEA TO THE JURISDICTION AND REOIJEST FOR IN LIMINE HEARING PAGE2 5303806v.2 133830/00001 IN LIMINE HEARING 6. Defendant requests that this Court conduct an in limine hearing on the issue of Plaintiffs' standing to bring their action. Defendant requests that such a proceeding be conducted before Plaintiffs are allowed to proceed with their suit. Defendant's challenge is a jurisdictional plea that must be determined in Plaintiffs' favor before Plaintiffs should be allowed to conduct discovery or to pursue this action. 7. Defendant is entitled to have this Court conduct the in limine proceeding immediately. For any person to maintain a suit, it is necessary that they have standing to litigate the matters at issue. A & W Industries, Inc. v. Day, 977 S.W.2d 738 (Tex. App.- Fort Worth 1998, no pet.). 8. In Day, the Fort Worth Court of Appeals also stated that the burden ofproofis on the person whose interest is challenged to present sufficient evidence during an in limine proceeding to prove that he is an interested person. /d. at 741. Therefore, Plaintiffs must prove that the doctrine of ademption does not apply and that they are entitled to receive the proceeds of the sale of the Kinsel Ranch. Plaintiffs must carry their burden in order to show that they have standing to be involved in this suit. Unless Plaintiffs can prove that they have standing, their suit should be dismissed immediately, because "the law will not allow a 'mere meddlesome intruder' to interfere with a decedent's estate in which he has no interest." /d., at 741. 9. After a party's standing is challenged, the failure of a trial court to conduct an in limine hearing is error. James C. Boone, et al., v. Murray LeGalley, eta/., 29 S.W.3d 614, 615 (Tex. App.-Waco 2000, no pet.). WHEREFORE, PREMISES CONSIDERED, JANE 0. LINDSEY, Individually and in no other capacity, prays that this Court conduct an in limine proceeding as soon as possible to determine whether VIRGINIA 0. KINSEL, as Attorney-in-Fact for J. FRANK KINSEL, J. PLEA TO THE JURISDICTION AND REQUEST FOR IN LIMINE HEARJNG 5303806v.2 133830/00001 PAGE3 FRANK KINSEL, JR., Individually, CAROLE K. EDWARDS, Individually, and CATHERINE K. COLLINS, Individually have standing to bring its action, that after such hearing the Court dismiss Plaintiffs' suit; and that the Court award to Defendant such other and further relief to which it may be entitled. Respectfully submitted, JACKSON WALKER L.L.P. 301 Commerce Street, Suite 2400 Fort Worth, TX 6102 817.334.7 35 817.87 5 35 By:::--1=-~::H-+------- M. e r State Bar No. William R. Je ins, Jr. State Bar No. 00784334 Colin L. Murchison State Bar No. 24049780 ATTORNEYS FOR DEFENDANT PLEA TO THE JURISDICTION AND REOUEST FOR IN LIMINE HEARING 5303806v.2 133830/00001 PAGE4 CERTIFICATE OF CONFERENCE I hereby certify that on September 29, 2008 I conferred with J. Lyndell Kirkley regarding the merits of this motion. No agreement was reached. eretl this motion is presented to the Court for a determination. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing document has been delivered to the following counsel of record, via certified mail, return receipt requested, on this 29th day of September, 2008: Via Hand Delivery J. Lyndell Kirkley Kirkley & Berryman, L.L.P. 100 N. Forest Park Blvd., Suite 220 Fort Worth, TX 76102 PLEA TO THE JURISDICfiON AND REOUEST FOR IN LIMINE HEARING PAGES 5303806v.2 133830/00001 JACKSON )W * WALKER L.L.P. William R. Jenkins, Jr. (817) 334-7214 Wjenk.ins@jw.com ATTORNEYS & COUNSELORS September 29, 2008 Via Hand Delivery Sharon Byrd, Clerk 153'd Judicial District Court Tarrant County Justice Center 401 West Belknap, 7th floor Fort Worth, TX 76196-0225 Re: No. 153-232668-08; Virginia 0. Kinsel, et al vs. Jane 0. Lindsey Dear Ms. Byrd: Enclosed is an original and one copy each of the following: 1. Special Exceptions and Original Answer of Jane 0. Lindsey, Individually, to Plaintiffs' First Amended Petition and Suit for Declaratory Judgment; and 2. Plea to the Jurisdiction and Request for In Limine Hearing. Kindly file same and return the file-stamped copies to the undersigned via our courier. Copies of said documents have been served upon counsel of record, as indicated below. In addition, please add the Plea to the Jurisdiction and Request for In Limine Hearing to the hearing scheduled in this cause on Thursday, October 2, 2008 at 9:00a.m. Thank you for your assistance in this matter. Please feel free to contact me with any questions you may have. -1 .-.> ::r: = g 0 0-;( -~· {./) -r-;> ,..., U> --l.P· v ~(./) ,.., :._.~; ~'<> N Uj William .. r N WRJ:dd Enclosures 5306275v.l 133830/00001 301 Commerce Street, Suite 2400 Fort Worth, Texas 76102 (817) 334-7200 fax (817)334-7290 www.jw.com Austin Dallas Fort Worth Houston San Angelo San Antonio Member of GLOBALAWSM September 29, 2008 Page2 cc: Via Hand Delivery Patricia Cannon, Coordinator 153rd Judicial District Court Tarrant County Justice Center 401 West Belknap, 7th floor Fort Worth, TX 76196-0225 Via Hand Delivery J. Lyndell Kirkley B. Dan Berryman Kirkley & Berryman, L.L.P. 100 N. Forest Park Blvd., Suite 220 Fort Worth, TX 76102 5306275v.l 133830/00001