Motion to Stay Proceedings in VIRGINIA O. KINSEL, ET AL (RESTYLED PER ORDER 7/16/2020) vs ALICE LINDSEY PEACOCK, ET AL

On September 09, 2008 a Motion,Ex Parte was filed involving a dispute between and for OTHER CIVIL, TEMP RESTRAINING ORDER/INJUNCTION in the District Court of Tarrant County.

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CAUSE No. 153-232668-08

VIRGINIA 0. KINSEL, as Attorney-in-Fact for § IN THE DISTRICT COURT
J. FRANK KINSEL, §
J. FRANK KINSEL, JR., Individually, §
CAROLE K. EDWARDS, Individually, and §
CATHERINE K. COLLINS, Individually, §
§
Plaintiffs, §
§
vs. § OF TARRANT COUNTY, TEXAS
§
JANE 0. LINDSEY, Individually and as §
Co-Trustee ofthe Lesey B. Kinsel Trust, §
ROBERT N. OLIVER, §
FUNCHESS, MILLS, WHITE, & Co., acting by and §
through its shareholder, TERRY S. WHIDDON, §
or any subsequent shareholder as designated § ..
by the shareholders of FUNCHESS, MILLS, WHITE, §
& Co., as Successor Co-Trustee of the Lesey B. §
Kinsel Trust, and § ,,
TERRY S. WHIDDON, as Successor Co-Trustee §
of the Lesey B. Kinsel Trust, §
§
Defendants. § 153rd JUDICIAL DISTRfCT ~~~
l_j·

PLAINTIFFS' EMERGENCY MOTION TO STAY PROCEEDINGS, OR, ALTERNATIVELY,
MOTION FOR A PROTECTIVE ORDER, OR, ALTERNATIVELY, MOTION TO QUASH
DEPOSITION NOTICES

TO THE HONORABLE COURT:

Plaintiffs VIRGINIA 0. KINSEL-- as Attorney-in-Fact for J. FRANK KINSEL-- J.

FRANK KINSEL, JR. --Individually-- CAROLE K. EDWARDS-- Individually-- and

CATHERINE K. COLLINS -- Individually (collectively "Plaintiffs") - file this Emergency

Motion to Stay Proceedings, or, Alternatively, Motion for Protective Order, or,

Alternatively, Motion to Quash Deposition Notices, and respectfully show the Court as

follows:

PLAINTIFFS' EMERGENCY MOTION TO STAY PROCEEDINGS, OR, ALTERNATIVELY, PAGE 1 OF 6
MOTION FOR A PROTECTIVE ORDER, OR, ALTERNATIVELY, MOTION TO QUASH DEPOSITION NOTICES
I.
Relevant Facts

1. On December 2, 2009, Defendant Jane 0. Lindsey, Individually and as

Co-Trustee of the Lesey B. Kinsel Trust ("Defendant Lindsey") served on Plaintiffs'

counsel via certified mail, return receipt requested, a First Amended Notice oflntent to

Take Oral Deposition of Virginia 0. Kinsel, as Attorney-in-Fact for J. Frank Kinsel, a

true and correct copy of which is attached hereto as Exhibit "A," a First Amended Notice

oflntent to Take Oral Deposition on Carole K. Edwards, a true and correct copy of which

is attached hereto as Exhibit "B," and a First Amended Notice of Intent to Take Oral

Deposition of Catherine K. Collins, a true and correct copy of which is attached hereto as

Exhibit "C." Pursuant to Exhibits "A," "B," and "C," the depositions of Plaintiffs

Virginia 0. Kinsel, Carole K. Edwards, and Catherine K. Collins are noticed for January

13, 2010, January 14, 2010, and January 15, 2010, respectively.

2. On December 11, 2009- without first conferencing with Plaintiffs'

counsel-- Defendant Lindsey filed a Plea in Abatement, a true and correct copy of which

is attached hereto as Exhibit "D." In the Plea in Abatement, Defendant Lindsey alleges,

inter alia, that certain beneficiaries of the Lesey B. Kinsel Trust ("Lesey's Trust") who

are not currently before the Court are necessary parties pursuant to Section 115.011 of the

Texas Property Code. In the plea, Defendant Lindsey requests the Court to "abate these

proceedings until all necessary persons and entities are made parties to Plaintiffs' suit."

Defendant Lindsey's Plea in Abatement has not yet been set for hearing.

3. On December 30, 2009, Plaintiffs' counsel wrote Defendants' counsel and

advised him that, in light of the Plea in Abatement filed by Defendant Lindsey, Plaintiffs'

counsel would refrain from producing Plaintiffs Virginia 0. Kinsel, Carole K. Edwards,

PLAINTIFFS' EMERGENCY MOTION TO STAY PROCEEDINGS, OR, ALTERNATIVELY, PAGE 2 OF 6
MOTION FOR A PROTECTIVE ORDER, OR, ALTERNATIVELY, MOTION TO QUASH DEPOSITION NOTICES
and Catherine K. Collins for deposition until the Court had ruled on the Plea in

Abatement. A true a correct copy of that correspondence is attached hereto as Exhibit

"E."

4. On December 31, 2009, Defendants' counsel wrote Plaintiffs' counsel and

advised that

Defendants will not agree to move the depositions of Ms. Kinsel,
Ms. Collins and Ms. Edwards. The First Amended Notices of
Deposition for the Plaintiffs named herein were served upon you
on December 2, 2009. Pursuant to Rule 199.4 of the Texas Rules
of Civil Procedure, since three days have passed since the Notices
were served, and no motion to quash has been filed, I plan on
conducting the depositions as currently scheduled.

A true and correct copy of that letter is attached hereto as Exhibit "F." Plaintiffs did not

receive Defendant Lindsey's Plea in Abatement until twelve (12) days after Defendant

Lindsey served the deposition notices attached hereto as Exhibits "A," "B," and "C."

II.
Emergency Motion to Stay Proceedings, or, Alternatively, Motion for a Protective
Order, or, Alternatively, Motion to Quash Deposition Notices

5. Plaintiffs respectfully request the Court to stay all proceedings in this case

until the Court has ruled on Defendant Lindsey's Plea in Abatement. If Plaintiffs are

required to join additional parties in this case, any additional parties would be entitled to

take the depositions of Plaintiffs Virginia 0. Kinsel, Carole K. Edwards, and Catherine

K. Collins. These Plaintiffs should only be required to give their depositions one time.

Defendants should not receive "two bites at the apple" with regard to the depositions of

these Plaintiffs. Therefore, Plaintiffs respectfully the Court to stay all proceedings,

including depositions, in this matter until the Court has ruled on Defendants' Plea in

Abatement and, if such plea is granted in whole or in part, until thirty (30) days after any

PLAINTIFFS' EMERGENCY MOTION TO STAY PROCEEDINGS, OR, ALTERNATIVELY, PAGE 3 OF 6
MOTION FOR A PROTECTIVE ORDER, OR, ALTERNATIVELY, MOTION TO QUASH DEPOSITION NOTICES
additional necessary parties, if any, are served in this cause, and until Plaintiffs have had

sufficient time to serve any required notices, specifically including, but not limited to,

any notices required to be served on the Attorney General of the State of Texas.

6. Alternatively, for the reasons set forth above, pursuant to Rule 199.4 of

the Texas Rules of Civil Procedure, Plaintiffs respectfully request the Court to enter a

protective order preventing the currently-noticed depositions of Plaintiffs Virginia 0.

Kinsel, Carole K. Edwards, and Catherine K. Collins from occurring until the Court has

ruled on Defendant Lindsey's Plea in Abatement, and, if such plea is granted in whole or

in part, until thirty (30) days after any additional necessary parties, if any, are served in

this cause, and until Plaintiffs have had sufficient time to serve any required notices,

specifically including, but not limited to, any notices required to be served on the

Attorney General of the State of Texas.

7. Alternatively, for the reasons set forth above, pursuant to Rule 199.4 of

the Texas Rules of Civil Procedure, Plaintiffs respectfully request the Court to quash the

depositions noticed in Exhibits "A," "B," and "C."

Prayer

For these reasons, Plaintiffs respectfully request the Court to stay all proceedings

in this matter until the Court has ruled on Defendant Lindsey's Plea in Abatement and,

should the Court grant the Plea in Abatement, until thirty (30) days after any additional

necessary parties, if any, are served in this cause, and until Plaintiffs have had sufficient

time to serve any required notices, specifically including, but not limited to, any notices

required to be served on the Attorney General of the State of Texas. Alternatively,

Plaintiffs ask the Court to enter a protective order preventing the currently-noticed

PLAINTIFFS' EMERGENCY MOTION TO STAY PROCEEDINGS, OR, ALTERNATIVELY, PAGE 4 OF 6
MOTION FOR A PROTECTIVE ORDER, OR, ALTERNATIVELY, MOTION TO QUASH DEPOSITION NOTICES
depositions of Plaintiffs Virginia 0. Kinsel, Carole K. Edwards, and Catherine K. Collins

from occurring until the Court has ruled on Defendant Lindsey's Plea in Abatement, as

more particularly requested above. Alternatively, Plaintiffs respectfully request the Court

to quash the depositions noticed in Exhibits "A," "B," and "C." Plaintiffs also pray for

all further relief, at law or in equity, to which they may show themselves justly entitled.

Respectfully submitted,

By:

B. Dan Berryman
Texas State Bar No. 00703338
Kelly B. Gibbons
Texas State Bar No. 24055548
KIRKLEY & BERRYMAN, L.L.P.
100 N. Forest Park Blvd., Suite 220
Fort Worth, Texas 76102
Tel. 817.335.3311
Fax: 817.335.7733

ATTORNEYS FOR PLAINTIFFS

Certificate of Conference

I certify that a reasonable effort has been made to resolve the dispute without the
necessity of Court intervention, and the effort failed. Therefore, this motion is presented
to the Court for determination.

Counsel for Pia tiffs

PLAINTIFFS' EMERGENCY MOTION TO STAY PROCEEDINGS, OR, ALTERNATIVELY, PAGE 5 OF 6
MOTION FOR A PROTECTIVE ORDER, OR, ALTERNATIVELY, MOTION TO QUASH DEPOSITION NOTICES
This motion is set for hearing on the _ _day of _ _ _ _ _ _ _ _ _ _ __
2010 at .m. in the 153'd District Court of Tarrant County, Texas.

Judge Presiding or Clerk

Certificate of Service

I hereby certify that on this~ day of January, 2010, a true and correct copy of
the above and foregoing document has been served on all counsel of record, as indicated
below:

(1) Via Hand-Delivery (2) Via Facsimile- 512.501.6311
Mr. William R. Jenkins Mr. Scott C. Kinsel
Mr. Colin L. Murchison SCOTT C. KINSEL, P.C.
JACKSON WALKER, L.L.P. 1609 Shoal Creek Blvd., Suite 100
301 Commerce Street, Suite 2400 Austin, Texas 78701
Fort Worth, Texas 76102

PLAINTIFFS' EMERGENCY MOTION TO STAY PROCEEDINGS, OR, ALTERNATIVELY, PAGE 6 OF 6
MOTION FOR A PROTECTIVE ORDER, OR, ALTERNATIVELY, MOTION TO QUASH DEPOSITION NOTICES
CAUSE NO. 153-232668-08

VIRGINIA 0. KINSEL, as Attorney-in- § IN THE DISTRICT COURT OF
Fact for J. Frank Kinsel, §
J. FRANK KINSEL, JR., Individually, §
CAROLE K. EDWARDS, Individually, §
and CATHERINE K. COLLINS, §
Individually §
§
Plaintiffs, §
§
vs. § TARRANT COUNTY, TEXAS
§
JANE 0. LINDSEY, Individually and as §
Co-Trustee of the Lesey B. Kinsel Trust, §
and ROBERT N. OLIVER §
§
Defendant. § 153RD JUDICIAL DISTRICT

FIRST AMENDED NOTICE OF INTENT TO TAKE ORAL DEPOSITION OF
VIRGINIA 0. KINSEL. AS ATTORNEY-IN-FACT FOR J. FRANK KINSEL

TO: VIRGINIA 0. KINSEL as Attorney-in-Fact for J. FRANK KINSEL, by and through her
attorneys of record, J. Lyndell Kirkley, B. Dan Berryman and Kelly B. Gibbons, Kirkley &
Berryman, L.L.P., 100 N. Forest Park Blvd., Suite 220, Fort Worth, Texas 76102.

PLEASE TAKE NOTICE that on Wednesday, January 13, 2010, Jane 0. Lindsey,

Individually and as Co-Trustee ofthe Lesey B. Kinsel Trust, will take the oral deposition ofVirginia

0. Kinsel, Attorney-in-Fact for J. Frank Kinsel, commencing at 9:30a.m. and continuing from day-

to-day thereafter until completed, at the offices ofKirkley & Berryman, L.L.P., 100 N. Forest Park,

Blvd., Suite 220, Fort Worth, Texas 76102. Said deposition may be used at the trial ofthe above-

styled and numbered cause and will be taken before a certified court reporter authorized by law to

administer oaths. The deposition will be videotaped.

EXHIBIT

I A
FIRST AMENDED NOTICE OF INTENT TO TAKE ORAL DEPOSITION OF ymGINIA 0. KINSEL,
ATTORNEY-IN-FACT FORJ. FRAN!{ KINSEL PAGEl
5668030v.l 133741/00001
Respectfully submitted,

JACKSON WALKER L.L.P.
301 Commerce, Suite 2400
Fort Worth, TX 76102
817.334.7200
817.870. 1 4-

State Bar
Colin L. Murchison
State Bar No. 24049780
ATTORNEYS FOR JANE 0. LINDSEY,
INDIVIDUALLY AND AS CO-TRUSTEE OF THE
LESEY B. KINSEL TRUST

CERTIFICATE OF CONFERENCE

A conference was attempted with the attorney for the opposing party to agree on a date, time,
place and materials to be furnished. Counsel will not respond and the osition is therefore being
taken pursuant to this notice. ·

FIRST AMENDED NOTICE OF INTENT TO TAKE Ol{AL DEPOSITION OF VIRGINIA 0. KINSEL.
ATTORNEY·IN-FACT fOR J. FRANK KINSEL PAGE2
5668030v.l 133741/00001
CERTIFICATE OF SERVICE

I hereby certify a true and exact copy of the foregoing First Amended Notice ofIntent to Take
Oral Deposition of Virginia 0. Kinsel, Attorney-in-FactforJ. FrankKinselhM been forwarded to
counsel of record via certified mail, return receipt requested this 2nd day of December, 2009:

Via Certified Mail,
Return Receipt Requested
No. 7160 390198481594 9420
Mr. J. Lyndell Kirkley
Kl:RKLEY & BERRYMAN, L.L.P.
100 N. Forest Park Blvd., Suite 220
Fort Worth, TexM 76102

Via Certified Mail,
Return Receipt Requested
No. 7160 3901 9848 1594 9437
Mr. Scott C. Kinsel
MOORE LANDREY, L.L.P.
1609 Shoal Creek Blvd., Suite 100
Austin, TX 78701

FIRST AMENDED NOTICE OF INTENT TO TAKE ORAL DE POSITroN OF VIRGINIA 0. KINSEL.
AITQRNEY-IN-FACT FOR J. FRANK KINSEL PAGE3
5668030v.1 133741/00001
CAUSE NO. 153-232668-08

VIRGINIA 0. KINSEL, as Attorney-in- § IN THE DISTRICT COURT OF
Fact for J. Frank Kinsel, §
J. FRANK KINSEL, JR., IndividuaUy, §
CAROLE K. EDWARDS, IndividuaUy, §
and CATHERINE K. COLLINS, §
Individua!Jy §
§
Plaintiffs, §
§
vs. § TARRANT COUNTY, TEXAS
§
JANE 0. LINDSEY, IndividuaUy and as §
Co-Trustee of the Lesey B. Kinsel Trust, §
and ROBERT N. OLIVER §
§
Defendant. § 153RD JUDICIAL DISTRICT

FIRST AMENDED NOTICE OF INTENT TO
TAKE ORAL DEPOSITION OF CAROLE K. EDWARDS

TO: CAROLE K. EDWARDS by and through her attorneys of record, J.Lyndell Kirkley, B.
Dan Berryman and Kelly B. Gibbons, Kirkley & Berryman, L.L.P., 100 N. Forest Park
Blvd., Suite 220, Fort Worth, Texas 76102. ·

PLEASE TAKE NOTICE that on Thursday, January 14, 2010, Jane 0. Lindsey,

Individually and as Co-Trustee ofthe Lesey B. Kinsel Trust, will take the oral deposition of Carole

K. Edwards commencing at 9:30 a.m. and continuing from day-to-day thereafter until completed, at

the offices ofKirkley & Berryman, L.L.P., 100 N. Forest Park, Blvd., Suite 220, Fort Worth, Texas

76102. Said deposition may be used at the trial of the above-styled and numbered cause and will be

taken before a certified court reporter authorized by law to administer oaths. The deposition will be

videotaped.

EXHIBIT

I 6
FIRST AMENDED NOTICE OF INTENT TO TAKE ORAL DEPOSITION OF CAROLE K. EDWARDS PAGEl
5668059v.1 133741/00001
Respectfully submitted,

JACKSON WALKER L.L.P.
301 Commerce, Suite 2400
Fort Worth, TX 76102
817.334.7200
817.870. 11 -F

ATTORNEYS FOR JANE 0. LINDSEY,
INDIVIDUALLY AND AS Co-TRUSTEE OF THE
LESEY B. KINSEL TRUST

CERTIFICATE OF CONFERENCE

A conference was attempted with the attorney for the opposing p to agree on a date, time,
place and materials to be furnished. Counsel will not respo d the osition is therefore being
taken pursuant to this notice.

FIRST AMENDED NOTICE OF INTENT TO TAKE ORAL DEPOSITION OF CAROLE K. EDWARDS PAGE2
5668059v.1 133741/00001
CERTIFICATE OF SERVICE

I hereby certify a true and exact copy of the foregoing First Amended Notice ofIntent to Take
Oral Deposition of Carole K Edwards has been forwarded to counsel of record via certified mail,
return receipt requested this 2nd day of December, 2009:

Via Certified Mail,
Return Receipt Requested
No. 7160 3901 9848 1594 9420
Mr. J. Lyndell Kirkley
K.lRKLEY &BERRYMAN, L.L.P.
100 N. Forest Park Blvd., Suite 220
Fort Worth, Texas 76102

Via Certified Mail,
Return Receipt Requested
No. 7160 3901 9848 1594 9437
Mr. Scott C. Kinsel
MOORE LANDREY, L.L.P.
1609 Shoal Creek Blvd., Suite 100
Austin, TX 78701

FIRST AMENDED NOTICE OF INTENT TO TAKE ORAL DEPOSITION OF CAROLE K. EDWARDS PAGE3
5668059v.1 133741/00001
CAUSE NO. 153-232668-08

VIRGINIA 0. KINSEL, as Attorney-in- § IN THE DISTRICT COURT OF
Fact for J. Frank Kinsel, §
J. FRANK KINSEL, JR., Individually, §
CAROLE K. EDWARDS, Individually, §
and CATHERINE K. COLLINS, §
Individually §
§
Plaintiffs, §
§
vs. § TARRANT COUNTY, TEXAS
§
JANE 0. LINDSEY, Individually and as §
Co-Trustee of tbe Lesey B. Kinsel Trust, §
and ROBERT N. OLIVER §
§
Defendant. § 153RD JUDICIAL DISTRICT

FIRST AMENDED NOTICE OF INTENT TO TAKE ORAL DEPOSITION OF
CATHERINE K. COLLINS

TO: CATHERINE K. COLLINS by and through her attorneys of record, J. Lyndell Kirkley, B.
Dan Berryman and Kelly B. Gibbons, Kirkley & Berryman, L.L.P., 100 N. Forest Park
Blvd., Suite 220, Fort Worth, Texas 76102.

PLEASE TAKE NOTICE that on Friday, January 15,2010, Jane 0. Lindsey, Individually

and as Co-Trustee of the Lesey B. Kinsel Trust, will take the oral deposition of Catherine K. Collins

commencing at 9:30 a.m. and continmng from day-to-day thereafter until completed, at the offices

ofKirkley & Berryman, L.L.P ., 100 N. Forest Park Blvd., Suite 220, Fort Worth, Texas 76102. Said

deposition may be used at the trial of the above-styled and numbered cause and will be taken before

a certified court reporter authorized by law to administer oaths. The deposition will be videotaped.

i e
EXHIBIT

FIRST AMENDED NOTICE OF INTENT TO TAKE ORAL I>EPOSITION OF CATHERINE K. COLLINS PAGEl
5668062v.l 133741/00001
Respectfully submitted,

JACKSON WALKER L.L.P.
301 Commerce, Suite 2400
Fort Worth, TX 76102
817.334.7200
817.870.51 4-

Colin L. Murchison
State Bar No. 24049780
ATTORNEYS FOR JANE 0. LINDSEY,
INDIVIDUALLY AND AS Co- TRUSTEE OF THE
LESEY B. KINSEL TRUST

CERTIFICATE OF CONFERENCE

A conference was attempted with the attorney for the opposing party to agree on a date, time,
place and materials to be furnished. Counsel will not respond and the deposition is therefore being
taken pursuant to this notice.

FIRST AMENDED NOTICE OF INTENT TO TAKE ORAL DEPOSITION OF CATHERINE K. COLLINS PAGE2
5668062v.l 133741100001
CERTIFICATE OF SERVICE

I hereby certify a true and exact copy of the foregoing First Amended Notice ofIntent to Take
Oral Deposition ofCatherine K. Collins has been forwarded to counsel of record via certified mail,
return receipt requested this 2nd day of December, 2009:

Via Certified Mail,
Return Receipt Requested
No. 7160 3901 98481594 9420
Mr. J. Lyndell Kirkley
KIRKLEY & BERRYMAN, L.L.P.
100 N. Forest Park Blvd., Suite 220
Fort Worth, Texas 76102

Via Certified Mail,
Return Receipt Requested
No. 7160 3901 9848 1594 9437
Mr. Scott C. Kinsel
MooRE LANDREY, L.L.P.
1609 Shoal Creek Blvd., Suite 100
Austin, TX 78701

FIRST AMENDED NOTICE OF INTENT TO TAKE ORAL DEPOSITION OF CATHERINE K. COLLINS PAGEJ
5668062v.l 133741/00001
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, ROBERT N. OLIVER, §
FUNCHESS, MILLS, WHITE & CO., §
acting by and through its shareholder §
as designated by the shareholder of §
FUNCHESS, MILLS, WHITE & CO., §
as Successor Co-Trustee of the Lesey §
B. Kinsel Trust, and TERRY S. §
WHIDDON, as Successor Co-Trustee §
of the Lesey B. Kinsel Trust §
§
Defendants. § 153rd JUDICIAL DISTRICT

PLEA IN ABATEMENT BY DEFENDANT JANE 0. LINDSEY, INDIVIDUALLY AND
AS CO-TRUSTEE OF THE LESEY B. KINSEL TRUST

TO THE HONORABLE COURT:

NOW COMES Jane 0. Lindsey, Individually and as Co-Trustee of the Lesey B. Kinsel

Trust, ("Defendant") and files this her Plea in Abatement and shows the Court the following:

I.
BRIEF SUMMARY OF FACTS

I. Plaintiffs Virginia 0. Kinsel, Attorney-in-Fact for J. Frank Kinsel, J. Frank

Kinsel, Jr., Individually, Carole K. Edwards, Individually, and Catherine K. Collins,

Individually, ('"Plaintiffs") tiled their Third Amended Petition and Suit for Declaratory Judgment

("Petition") on September 16, 2009 seeking a declaration that: (a) Lesey Kinsel ("Lesey") did

EXHIBIT
Pl.f.A 1:\ AIIATF..\IF.NT IIY UHE:\DA:\T .JANE 0. U:\DSEY.
J,'iJ>IVIDt:ALLY A:\D AS CO-TRliSTEF. OF THE I.ESEY B. KINSEL TRliST
I D PAGEl
5667821v.l 133741/00001
not have capacity to execute the documents conveying the Kinsel Ranch to a third party; (b)

Lesey would not have executed the documents conveying the Kinsel Ranch but for the undue

influence allegedly executed upon her; (c) Lesey did not have capacity to execute the Fourth and

Fifth Amendment to the Lesey B. Kinsel Trust (the "Trust"); and (d) Lesey would not have

executed the Fourth and Fifth Amendments to the Trust but for the undue influence allegedly

executed upon her.

2. Based on the relief sought by Plaintiffs, there are necessary parties that must be

joined by Plaintiffs prior to the Court rending a judgment in this case. Specifically other parties

to the sale of the Kinsel Ranch and other beneficiaries to the Trust need to be joined. Therefore,

Defendant requests the Court to abate these proceedings until such necessary parties are joined.

II.
ARGUMENTS AND AUTHORITY

A. Parties To The Sale Of The Kinsel Ranch Are Necessary Parties.

3. As noted above, Plaintiffs have requested the Court to either declare that Lesey

did not have the requisite mental capacity to execute the documents to sell the Kinsel Ranch or

that she executed the documents as a result of undue influence. If Plaintiffs succeed on their lack

of capacity allegation, the sale of Lesey's portion of the Kinsel Ranch would be void. Jones v.

Lind, 211 S.W.2d 587, 588 (Tex. Civ. App.-Austin 1948, no writ). 1 Likewise, if the Plaintiffs

succeed on their undue influence allegation, the sale of Lesey's portion of the Kinsel Ranch

would be void. Dace v. Dace, No. 01-05-00832-CV, 2008 WL 2930092 at *6 (Tex. App.-

' Holding that when a grantor's incapacity is legally established to have existed at the time of the execution of the
deed, the transaction is vitiated.

PLEA I~ ABATHIE.'H BY DEFE:'IiDA:\T JA:\E 0. LI:\DSEY,
INI>IVIDliALLY AI\D AS CO-TRloSTEE OF THE LESEY B. KINSEL TRl:ST PAGE2
5667821v.l 133741/00001
Houston (1 51 Dist.] July 31,2008, no pet. h.). 2 If the sale is invalidated, every person involved in

the sale of the Kinsel Ranch would be affected by the cancellation of the sale.

4. Each person associated with the sale of the Kinsel Ranch must be joined to protect

their own interests which were impacted by the sale. 0 'Byrne v. Oak Park Tr. Sav., 450 S.W.2d

411, 414 (Tex. Civ. App.-Beaumont 1970, writ refd n.r.e.) (per curiam). 3 The sellers of the

Kinsel Ranch who are not currently parties to this lawsuit are: (I) Paul Alex Prince, Jr.; (2)

Linnie Jo Prince Wyatt; (3) Beaver Ernest Prince; (4) Alice Kathleen Kinsel Head; (5) Cecilia

Kinsel; (6) Edward Ashley Kinsel; (7) Anthony William Kinsel; (8) Alysha Suzette Kinsel; and

(9) Cheryl Siebert, Trustee for Christie Ann Kinsel. If the sale of the Ranch is declared void,

each one of the above-mentioned sellers will be forced to forfeit their individual proceeds. The

Plaintiffs who participated in the sale will also be forced to forfeit their individual proceeds.

Therefore, their presence in this lawsuit is necessary so that they may be given an opportunity to

protect that interest.

5. The purchasers and current owners of the Kinsel Ranch who are not currently

parties to this lawsuit are Ronald Urbanczyk and Terry Urbanczyk. If the sale of the Ranch is

declared void, the above-mentioned owners will have to forfeit their ownership interest in the

Kinsel Ranch. Therefore, their presence in this lawsuit is necessary so that they may be given an

opportunity to protect their interest. See Jones at 589. 4

6. In addition to the sellers and buyers of the Kinsel Ranch, there are other

individuals and entities that would have their rights and interests affected by a declaration that

'Memorandum opinion upholding the ruling of the trial court that a deed executed as a result of undue influence is
"null, void and invalid and of no force or effect. ..
' Holding in a suit to cancel a written instrument, all parties whose rights, interests, or relations with or through the
subject-matter of the suit will be affected by the cancellation are necessary parties.
4
Subsequent purchaser did not acquire title as an innocent purchaser since it was established grantor lacked capacity
to transfer the property in question.

PLEA l,"i ABATHIDIT BY DEFENIM:'oiT JA:'IIE 0. Ll:'liDSEY,
INDIVIDliALLY AND AS CO-TRliSTEE OF THE LESEY B. KINSEL TRliST PAGEJ
566782Jv. I 133741/00001
the sale of the Kinsel Ranch is void. Those known individuals and entities who are not currently

parties to this lawsuit arc: (I) Joel McDaniel (waived his jointly-held right of first refusal for the

purchase of the Kinsel Ranch); (2) R. Burrell Day (waived his jointly-held right of first refusal

for the purchase of the Kinsel Ranch); (3) Stewart Title (title company used in the sale of the

Kinsel Ranch); (4) Presidio Title (titlecompany used in the sale of the Kinsel Ranch; (5)

StewartRanches.com, L.L.C. (broker to sale of the Kinsel Ranch); and (6) the Internal Revenue

Service (capital gains taxes were paid by Lesey Kinsel on her share of the proceeds from the

sale). If the sale of the Kinsel Ranch is declared void, Mr. McDaniel's and Mr. Day's jointly-

held rights of first refusal will again be in effect and thus their interests would be affected. If the

sale is declared void, the commission and fees charged by Stewart Title, Presidio Title and

StewartRanches.com, L.L.C. will be affected. Ifthe sale is declared void, a refund claim must be

filed by the Estate of Lesey Kinsel to recover the capital gains taxes paid on her share of the

proceeds. Therefore, Defendant requests the Court to abate these proceedings until the above-

mentioned individuals and entities are joined by Plaintiffs as parties to this suit.

B. Trust Beneficiaries Who Are Necessary Parties.

7. In addition, Plaintiffs have requested the Court to declare the Fourth and Fifth

Amendments to the Trust invalid. In the event Plaintiffs are completely successful, there are

beneficiaries under the Fourth and Fifth Amendments who are not currently parties to this suit

who will be affected by the invalidation of such amendments. Further, all beneficiaries to the

Third, Fourth and Fifth Amendments arc necessary parties pursuant to Texas law. See TEX.

PROP. CODE ANN. §115.011.

Rule 39 of the Texas Rules of Civil Procedure provides as follows:

A person who is subject to service shall be joined as a party in the
action if... (2)he claims an interest relating to the subject of the

PLEA IN ABATE~IENT BY DEFENDANT JA:'IIE O. l.l!liDSEY,
J,'WIVIIHiAI.LY AND AS CO-TIUISTEE OF THE LESEY B. KINSF.L TRI'ST PAGE4
5667821v.l 133741/00001
action and is so situated that the disposition of the action in his
absence may (i) as a practical matter impair or impede his ability to
protect his interest. ...

TEX. R. Clv. P. 39 (emphasis added). It is without question that the parties to the sale of the

Kinsel Ranch and the Trust beneficiaries have interests relating to the subject matter of

Plaintiffs' suit and that if such parties are not joined, their interests will be adversely affected.

8. Because Plaintiffs seek to invalidate both the Fourth and Fifth Amendment to the

Trust, each beneficiary named in the Third, Fourth and Fifth Amendments to the Trust are

necessary parties. Those beneficiaries which have not been joined by Plaintiffs in this lawsuit

are: (1) Texas Tech Loyalty Fund; (2) St. Andrews Presbyterian Church, Beaumont, Texas; (3)

Humane Society of Southeast Texas; (4) William Ashley Kinsel; (5) Richard Bullock; (6) Sue

Earl McReynolds; (7) Ida Castillo; (8) Frances Garza; (9) Joe Bullock; (I 0) Paul A. Prince; and

(II) Linnie Jo Wyatt. Since three of the above-mentioned necessary beneficiaries are charitable

in nature, the Attorney General for the State of Texas is required to be served with notice of this

proceeding. TEX. PROP. CODE ANN. §115.011(c).

9. Further, Section 115.013 provides that an affected interest in a proceeding

involving a trust shall be descr

Case Info

Judge

Len A. Wade Track Judge’s New Case

Case No.

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Document Filed Date

January 04, 2010

Case Filing Date

September 09, 2008

County

Parties

Marshall Searcy Attorney
Frank Greenhaw Attorney
Susanna Johnson Attorney
Bradley Berryman Attorneys for Plaintiffs
Kelly Gibbons Attorneys for Plaintiffs
Lindy Jones Attorneys for Plaintiffs
Scott Kinsel Attorneys for Plaintiffs
Michael Branyon Attorneys for Defendants
Colin Murchison Attorneys for Defendants
Brian Garrett Attorney
William Jenkins Attorneys for Defendants
J. Kirkley Attorneys for Plaintiffs
Ana Forcum Attorneys for Plaintiffs
Phillip Ledbetter Attorney
William Kirkman Attorneys for Defendants
Sean Looney Attorneys for Plaintiffs
Joseph Johnson Attorneys for Plaintiffs
Dwayne Smith Attorney
Karin Cagle Attorneys for Plaintiffs
John Gilpin Attorney
Len Wade Attorneys for Defendants
John Cayce Attorney
William Willis Attorneys for Defendants

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Motion,Ex Parte: VIRGINIA O. KINSEL, ET AL (RESTYLED PER ORDER 7/16/2020) vs ALICE LINDSEY PEACOCK, ET AL

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