2015-05

in Re Daniel W. Warren, Beneficiary of the Daniel Steven Weiner 1996 Trust ( 2015 )

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ACCEPTED
01-15-00471-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
5/26/2015 2:49:52 PM
1 PRINE
CHRISTOPHER
CLERK
1 REPORTER'S RECORD
2 FILED IN
VOLUME 1 OF 1 1st COURT OF APPEALS
HOUSTON, TEXAS
3 TRIAL COURT CAUSE NO. 425.576-401
5/26/2015 2:49:52 PM
CHRISTOPHER A. PRINE
4 APPELLATE NO. Clerk
5 IN RE: IN THE PROBATE COURT
DANIEL STEVEN WEINER NUMBER 4 (FOUR) OF
6 1996 TRUST HARRIS COUNTY, TEXAS
7
8
9
10 * * * * * * * * * * * * * * * * * *
11 DANIEL WARREN'S PLEA TO THE JURISDICTION
12 * * * * * * * * * * * * * * * * * *
13
14
15
16
17 On the 13th day of May, 2015, the following
18 proceedings came to be heard in the above-entitled and
19 numbered cause before the Honorable Christine Butts
20 Judge of Probate Court No. 4, held in Houston, Harris
21 County, Texas:
EXHIBIT
exhibitsticker.com
22
TAB E-1
23
24 Proceedings reported by Machine Shorthand
25
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
2
1 A-P-P-E-A-R-A-N-C-E-S:
2 Ms. Carol A. Cantrell Ms. Sarah P. Pacheco
Attorney at Law Attorney at Law
3 SBN 24043592 SBN 00788164
CANTRELL & CANTRELL, PLLC Crain Caton & James
4 3700 Buffalo Speedway 1401 McKinney; 17th Floor
Suite 520 Houston, Texas 77010
5 Houston, Texas 77098 713.658.2323
713.333.0555
6
ATTORNEY FOR PETITIONER ATTORNEY FOR ANDY WEINER
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
3
1 VOLUME 1
(PLEA TO THE JURISDICTION)
2 May 13, 2015 Page Vol.
3 PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1
PLEA TO THE JURISDICTION:
4 ARGUMENT BY MS. CANTRELL . . . . . . . . . . . . . . . . 4 1
ARGUMENT BY MS. PACHECO . . . . . . . . . . . . . . . . 10 1
5 REBUTTAL ARGUMENT BY MS. CANTRELL . . . . . . 20 1
REBUTTAL ARGUMENT BY MS. PACHECO . . . . . . . 27 1
6 COURT Is RULING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 9 1
7 COURT REPORTER'S CERTIFICATE . . . . . . . . . . . . . . . 38 1
EXHIBITS INDEX
8 RESPONDENT'S DESCRIPTION OFFERED ADMITTED VOL.
A Original Petition for
9 Termination of Trust 15 16 1
B First Amended Original
10 Petition for Modification
of Trust and Response
11 to Plea in Abatement
and Plea to the
12 Jurisdiction 16 17 1
c Original Petition In
13 Intervention 17 17 1
D Andy Weiner's Cross-Claims
14 Against Katherine Warren
F/K/A Katherine Weiner 17 17 1
15 E First Supplement to
Original Answer 17 18 1
16 G Rules of the Probate
Courts of Harris Cnty 18 18 1
17 H Plaintiff's Original
Petition 18 19 1
18 PLAINTIFF'S DESCRIPTION OFFERED ADMITTED VOL.
1 Petitioner's Notice
19 of Nonsuit Against
Andy Weiner 5 5 1
20 2 Order Granting Petitioner's
Nonsuit and Dismissal 5 6 1
21 3 Andy Weiner's Counter
& Cross-Petition 5 6 1
22 4 Andy Weiner's Sec'd
Amended Cross-Claims
23 Against Katherine Warren
F/K/A Katherine Weiner 6 6 1
24 5 Amended Order on
Motion to Sever 6 7 1
25 6 Email chain 7 X 1
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
4
1 May 13, 2015
2 PROCEEDINGS
3 THE COURT: Calling to order Cause Number
4 425.576 in the 401; In Re: Daniel Steven Weiner 1996
5 Trust. We're here on Daniel Warren's Plea To The
6 Jurisdiction.
7 MS. CANTRELL: That is correct. Are we
8 ready to proceed?
9 THE COURT: Yes, we are.
10 DANIEL WARREN'S PLEA TO THE JURISDICTION
11 ARGUMENT BY MS. CANTRELL:
12 MS. CANTRELL: Well hopefully this will be
13 the easiest of the three Weiner Trust cases.
14 This case involves a nonsuit at a time
15 where there were no outstanding claims of any kind.
16 Daniel had sued Andy Weiner, and Katherine
17 Warren was a Respondent in that. He nonsuited Katherine
18 Warren. So, she was out.
19 Andy Weiner had affirmative defenses but
20 no counter-claims against Daniel.
21 Andy Weiner had cross-claims against
22 Katherine but not in Daniel's case. They were all in
23 the case that David filed. And so at the moment in time
24 that he nonsuited, and at the time he was dismissed,
25 under Greenberg versus Brookshire, the case was over.
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
5
1 All the controversies were settled; all the cllaims were
2 gone and the parties were gone.
3 I would like to go ahead and irtroduce as
4 Exhibit 1, the date order so that there's no question
5 about that just to make sure. What I have in Exhibit 1
6 for you, Sarah, is the Daniel's nonsuit of his entire
7 case against Andy Weiner. And I have this Ccurt's order
8 granting his nonsuit and dismissal. His nonsuit was
9 March lOth; the dismissal was March 16th; anc the
10 counter and cross-petition was March 24th.
11 MS. PACHECO: My only request, Your Honor,
12 is if it is three distinct documents, if we can enter
13 those as three distinct exhibits because I'm quite
14 confident where Ms. Cantrell would go next ar.d that
15 would be the appellate record. I always fine it's
16 easier to refer to each document separately in the
17 record if that's okay.
18 MS. CANTRELL: Okay. That's fine.
19 We'll mark those Exhibit 1 for the notice
20 of nonsuit. Exhibit 2 for the dismissal. Ar.d Exhibit 3
21 for the counter and cross-petition.
22 THE COURT: Exhibit 1 which is
23 Petitioner's Notice of Nonsuit Against Andy Weiner is
24 admitted as Exhibit 1, as Plaintiff's Exhibit 1. And
25 the Order Granting Petitioner's Nonsuit and Dismissal,
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
6
1 that is admitted as Plaintiff's Exhibit 2. Jnd Andy
2 Weiner's Counter and Cross-Petition is admitted as
3 Plaintiff's Exhibit 3.
4 MS. CANTRELL: I would also li~e to admit
5 Exhibit 4 which is Andy Weiner's Second Amenced
6 Cross-Claims. And one of the footnotes in tte response
7 that, I guess, Ms. Beduze or Ms. Pacheco filed last
8 night about 5:00, said that it was administrative error
9 that this cross-claim got left off of the liEt of
10 documents that were transferred to Daniel's case. And
11 so, I would like to admit Exhibit 4 as the Second
12 Amended Cross-Claims to show, number one, that it was in
13 David's case only.
14 MS. PACHECO: I have no objection.
15 MS. CANTRELL: Okay.
16 THE COURT: Okay. Andy Weiner's Second
17 Amended Cross-Claims Against Katherine Warren Formerly
18 Known As Katherine Weiner is admitted as Plaintiff's
19 Exhibit 4.
20 MS. CANTRELL: And because I think there
21 might be a dispute over whether that -- those
22 counter-claims or those cross-claims apply in Daniel's
23 case, I would like to also admit Exhibit 5 which is this
24 Court's order and the list of documents that were moved
25 over in the motion to sever in the agreed order -- or
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
7
1 not the agreed, but the amended order to sever - that
2 being dated November 17th of 2014, showing clearly that
3 those cross-claims were not moved.
4 MS. PACHECO: No objection.
5 THE COURT: Okay. The Amended Order On
6 The Motion To Sever is admitted as Plaintiff's Exhibit
7 5.
8 MS. CANTRELL: And the only otter one that
9 I would like to admit at this time is Exhibit 6 which is
10 the email chain that led up to that motion OI that order
11 to sever in that itemized list of documents tecause it
12 took us 10 days of negotiations to get that list pulled
13 together. It started with a draft of a, of a list that
14 Ms. Beduze put together, and it's in substantial
15 identical form as the one that was actually ~igned. And
16 we went back and forth with certain changes to the
17 language on it - who was going to pay for the cost and
18 so forth; but essentially, it was negotiated. It was
19 in the email - this is from Judge Comstock tc me and
20 Kathleen Beduze - she said, "Are there any acditional
21 items that you would like to include in the crder to
22 protect the order?"
23 So we all, I believe, had ample
24 opportunity to add to, subtract, and it didn't make it.
25 Just to clear the record that that is not pait of
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
8
1 Daniel's case - the cross-claims aren't.
2 MS. PACHECO: I'm going to object to a
3 series of emails between Counsel and your court staff
4 that are basically going back and forth and aren't
5 complete. It's hearsay, it's inappropriate, and this
6 doesn't constitute anything but the efforts of lawyers
7 trying to do the right thing. The document speaks for
8 itself.
9 MS. CANTRELL: I would agree to leave it
10 out if there's no objection that the cross-claims are
11 not in Daniel's case.
12 MS. PACHECO: We've already placed in the
13 record what we placed in the record, Your Honor. The
14 record speaks for itself.
15 MS. CANTRELL: The record is conflicting,
16 then, because the response says that they are before
17 this court, and I believe that the record shows that
18 they're not.
19 MS. PACHECO: The Court's order speaks for
20 itself. And the Court's order specifically says that
21 you are moving over, let me find the exact wcrding ...
22 "All prior motions, discovery crders,
23 responses and answers." And then there is a laundry
24 list of specific pleadings. So, the order Sfeaks for
25 itself. I don't think conversations between Counsel and
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
9
1 court staff who are trying to be helpful but certainly
2 weren't shepherding responsible a ruling on these
3 matters is any way relevant to the appellate record in
4 this case.
5 MS. CANTRELL: Then I would point out that
6 prior discovery, orders, motions, responses and answers
7 do not include pleadings. And that cross-claim would be
8 a pleading. So, I mean, if we're in agreemer.t that the
9 cross-claim does not apply to this case, ther., I'm okay
10 not admitting the emails.
11 MS. PACHECO: I've said my objection, Your
12 Honor, at this point. I believe I don't think I have
13 anything else to add, and I'm just wasting ycur time
14 reiterating the same thing. It's for the Co~rt to rule.
15 I believe the record speaks for itself, and it's for the
16 appellate court to determine where somebody is going to
17 go.
18 THE COURT: Okay. I'm not going to be
19 able to admit Exhibit 6.
20 MS. CANTRELL: Okay. That's fine.
21 THE COURT: Okay. So, let's ccntinue.
22 MS. CANTRELL: In a case like Laniel's
23 where there is a nonsuit and there are no outstanding
24 claims, it's clear there was no cross-claim against
25 Katherine and the counter and cross-petition was filed
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND R,PORTER
10
1 well after the dismissal. That is on all 4', - the
2 supreme court case of Greenberg versus Brookshire. And
3 that case has been followed over a hundred times in all
4 kinds of cases. Greenberg versus Brookshire was a
5 divorce case, but it's been followed by Texas Supreme
6 Court cases, it's been followed by appeal court cases,
7 Fifth Circuit Court of Appeals, the federal courts.
8 It's the law of the land. It's a landmark case. It was
9 a case exactly like this where there was a suit and a
10 nonsuit and a counter-claim following the nonsuit. And
11 the supreme court mandamused the judge - it was a
12 district court judge in Jefferson County - and said,
13 "Halt. The case is over."
14 And I submit that our case is Greenberg
15 versus Brookshire on all 4's.
16 MS. PACHECO: May I proceed, Your Honor?
17 THE COURT: Certainly.
18 DANIEL WARREN'S PLEA TO THE JURISDICTION
19 ARGUMENT BY MS. PACHECO: I
20 MS. PACHECO: I think the fundabental
21 difference is the way we view what this case is. I
22 admit, I'll be the first person to admit, this case is
23 probably the most convoluted procedural case ~'ve ever
24 seen. Petitioners have become Respondents; t~ey've
25 released each other; they've sat in depositio~s
I
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER I
11
1 representing the other. It is a bizarre easel. I don't
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2 understand what they're doing, but frankly, t~ey, as Ms.
Cantrell told me when I called her the day I got her
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3
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4 nonsuit, she doesn't have to tell; and she's right. But
5 what she misses is when she chooses to nonsui t 1 my
6 client who'd been a defendant for a year and a half, had
7 substantial money invested in the education of this
8 Court and rulings obtained by this Court, had the
9 absolute right to, himself, institute a lawsuit and
10 proceed on that lawsuit to resolve the very issues they
11 have raised and vilified him for. And that's exactly
12 what -- you don't have to worry about the nonsuit.
13 I'll take the simple answer first.
14 When we filed days after she filed her
15 nonsuit, we filed a cross and counter-petition. We
16 affirmatively stated in there, and it's her exhibit,
17 that because of the convoluted procedural nature of this
18 case, we drafted it just like an original petition. And
19 in fact, it shows Paragraph 1 as discovery letter level
20 just like an original petition. And Footnote, 2 says,
21 "Due to the confusing nature of this case's Jrocedural
22 background, Mr. Weiner requests that service lbe affected
I
23 on Daniel through his attorney of record as ~ell as
I
24 through private process."
25 We treated this suit to be careful as a
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
12
1 newly-instituted lawsuit which that jurisdiction
2 reattaches to this court on the moment the pleading is
3 filed. And that is confirmed. In fact, when I was
4 looking at this issue, and it is an odd issue - because
5 what Ms. Cantrell focuses on her nonsuit. If she filed
6 a nonsuit and then when we came down and got
7 affirmative relief against Daniel, which is what
8 happened in Greenberg, I would be saying she's
9 absolutely right. We can't do that. All we did was
10 reinstitute a lawsuit in the same cause number which
11 Local Rule 2.2 tells us this is where this lawsuit goes.
12 Once you choose the number, it goes back to that
13 original number.
14 We instituted a new lawsuit and
15 immediately attempted to effectuate service.
16 When they evaded it nine times, this Court
17 entered a substituted service order. This Court had
18 absolutely every right to do that because every court
19 has jurisdiction to enter a substituted order when a
20 party is evading service. And that's what's happened in
21 this case. That's all that's happened.
22 In Greenberg, after the party dismissed,
23 the Court entered rulings. Well they can't enter
24 rulings because I would agree in that case the parties
25 aren't before this Court. The only thing that's
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
13
1 happened in this case since the readmission of this
2 pleading is the attempt to join her clients, and we have
3 now done that through substituted service. We haven't
4 gotten to any affirmative rulings. They will be a
5 party.
6 Greenberg is completely irrelevant to this
7 case 'cause your court has entered no rulings. You've
8 done nothing other than approved substituted service
9 since we filed this pleading. Now once the service date
10 has passed, whatever she's going to do - she can argue
11 then whether we should have the ruling or not, but
12 they're before this Court; they've been joined.
13 The supreme court in Zachary versus Lane
14 in 2001 looked at the issue of who is a party. Do you
15 have to be served to be a party or are you a party the
16 second the pleading is filed? The supreme court looked
17 at the case and said, "No. You are a party the second
18 the case is filed." They were rejoined as a party
19 'cause we re-served her which I agree - if they claim
20 they want a party - so be it. But we didn't skip the
21 step of personal service. We did that; albeit, by
22 substituted because they evaded.
23 But in that case, the supreme court said
24 they are party the second the pleading is filed. Now
25 you can't render judgment against that person unless we
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
14
1 go and proceed and join, but the definition of "party"
2 is not when they have just been joined; in fact, what
3 they said:
4 "The supreme court does not hold that a
5 named defendant is not a party until that person is
6 served except to waive service."
7 Well it's true the party may be served
8 except to waive service otherwise a PR in order for a
9 judgment to be rendered against them; nevertheless, it
10 doesn't make them not a party in the lawsuit in which
11 they have been specifically named.
12 Another case out of Corpus Christi,
13 Christus Health versus Ragsdale, also a 2001 case,
14 looked at the issue of can you then add a party to a
15 suit later and it relates back to the original filing?
16 And they say, "Yes,•• even if that party tried to run off
17 to another court and file a lawsuit. And that's Corpus
18 Christi -- Christus Health versus Ragsdale.
19 So, my point is we're sort of avoiding the
20 real issue here.
21 She does not like that when she was
22 playing her procedural games, we got a sense that this
23 wasn't going away and reinstituted the very same
24 affirmative claims in this suit that they have been
25 bringing this whole time, construction of the trust.
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
15
1 So, I just disagree wholly that her cases
2 apply. I disagree wholly this Court doesn't have
3 jurisdiction. It's a statute of probate court. As you
4 know very well, it's concurrent jurisdiction in all
5 trust cases. This is a trust case that had been pending
6 here.
7 And on March 24th, before she went to the
8 district court, we initiated, at a minimum, what would
9 be deemed a new lawsuit.
10 I have a few exhibits to put in the
11 record. They are mainly attached to my pleading so I
12 didn't make extra copies for Counsel, but I do feel like
13 I want to go the extra step and have them in the record.
14 I'm offering as Exhibit A, and I
15 apologize, I'm just trying to use the same exhibit
16 numbers I did to my response. The Original Petition For
17 Termination of Trust originally filed by Katherine
18 Warren as Co-Trustee of Daniel's trust on October 2nd,
19 2013 as Respondent's for Mr. Weiner's Exhibit A. And
20 I'll represent to Counsel these are duplicates of the
21 exhibits attached.
22 MS. CANTRELL: That's fine.
23 THE COURT: The Original Petition For
24 Termination of Trust is -- well do you have an
25 objection?
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
16
1 MS. CANTRELL: No objection.
2 THE COURT: Is admitted as Respondent's
3 Exhibit A.
4 MS. PACHECO: Thank you, Your Honor. We
5 offer as Exhibit B, the First Amended Original Petition
6 For Modification of Trust and Response To Plea and
7 Abatement and Plea To The Jurisdiction filed by
8 Katherine Warren as next friend of Daniel Weiner on
9 November 4th of 2013, Your Honor.
10 MS. CANTRELL: My only objection, I guess,
11 other than those two, would be that those are -- are
12 those in Cause 425.576?
13 THE COURT: Yes.
14 MS. CANTRELL: Which is a case that's been
15 dismissed now. So, that's -- it was dismissed back in
16 November of 2013. They're somewhat irrelevant, but I
17 presume it's harmless to admit them at this point.
18 MS. PACHECO: I just want to show the
19 procedural and history of this particular Mr. Weiner's
20 claims, Daniel Weiner's claims as it relates to this
21 Court, Your Honor.
22 THE COURT: The first amended -- so are
23 you --
24 MS. CANTRELL: I'm okay with that.
25 THE COURT: withdrawing your objection?
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
17
1 MS. CANTRELL: No, I have no objection.
2 THE COURT: Okay. The First Amended
3 Original Petition for Modification of Trust and Response
4 To Plea and Abatement and Plea To The Jurisdiction is
5 admitted as Respondent's Exhbit B.
6 MS. PACHECO: Thank you, Your Honor.
7 And I offer as Exhibit C, the Original
8 Petition In Intervention filed by Daniel Steven Weiner
9 on April 22nd of 2014 in Cause Number 425.577.
10 MS. CANTRELL: No objection.
11 THE COURT: The Original Petition In
12 Intervention is admitted as Respondent's Exhibit C.
13 MS. PACHECO: Thank you, Your Honor.
14 I offer as Andy Weiner's Cross-Claims
15 Against Katherine Warren Formerly Known As Katherine
16 Weiner filed on July 2nd, 2014, Your Honor.
17 MS. CANTRELL: No objection.
18 THE COURT: The Andy Weiner's Cross-Claims
19 Against Katherine Warren, F/K/A Katherine Weiner is
20 admitted as Respondent's Exhibit D.
21 MS. PACHECO: Your Honor, I offer into
22 first supplement -- First Supplement To Original Answer
23 filed by Mr. Weiner on July 8, 2014.
24 MS. CANTRELL: No objection.
25 THE COURT: The First Supplement To
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
18
1 Original Answer is admitted as Respondent's Exhibit E.
2 MS. PACHECO: Thank you, Your Honor.
3 I offer as our Exhibit G, the Rules of The
4 Probate Courts of Harris County, Texas approved by the
5 supreme court and entered as an order of this court on
6 March 8 of, 2007.
7 MS. CANTRELL: May I see those? Which
8 rules are those?
9 MS. PACHECO: Yes.
10 MS. CANTRELL: Oh, the probate courts.
11 Good. Thank you.
12 THE COURT: The Rules of The Probate
13 Courts of Harris County, Texas, are entered as
14 Respondent's Exhibit G.
15 MS. PACHECO: Thank you. And I was going
16 to offer so I affirm the offering of Andy Weiner's
17 Counter-Claim and Cross-Petition which I believe is
18 already Plaintiff's Exhibit 3. I believe that's already
19 admitted into evidence; is that right, Your Honor?
20 THE COURT: It is.
21 MS. PACHECO: Thank you.
22 And finally as Exhibit H, I offer
23 Plaintiff's Original Petition of David W. Warren, Daniel
24 W. Warren and Katherine Warren as next friend of MHW, a
25 minor. That was filed in the district courts of Harris
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
19
1 County and assigned to District Court Number 133 on
2 April the 2nd of 2015.
3 MS. CANTRELL: No objection.
4 THE COURT: Okay. Plaintiff's Original
5 Petition is admitted as Respondent's Exhbit H.
6 MS. PACHECO: And what those documents
7 establish is the procedural history in this court
8 including the severance because of Mr. Daniel Weiner's
9 now-Daniel-Warren's intervention; but more specifically,
10 that Mr. Weiner's counter and cross-petition which fell
11 to constitute the original pleading that was promptly
12 served was filed before any attempt to initiate any
13 jurisdiction, any other court which the supreme court
14 has also said the first filing applies. And that would
15 reinstitute this Court's jurisdiction.
16 Even if you believe that we couldn't
17 rejoin her, even if you believed that there was no valid
18 existing lawsuit as it relates to Daniel, it's
19 irrelevant because we reinstituted a lawsuit on March
20 24th; we promptly served; service has been obtained.
21 And finally we ask the Court to take
22 judicial notice of your order of substituted service.
23 THE COURT: It is so noted.
24 MS. PACHECO: Thank you, Your Honor.
25
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
20
1 REBUTTAL ARGUMENT BY MS. CANTRELL:
2 MS. CANTRELL: May I? I have a couple of
3 comments in rebuttal.
4 THE COURT: Sure.
5 MS. CANTRELL: The facts of this case are
6 what happened in Greenberg versus Brookshire
7 identically. There was a counter-claim, a brand new
8 pleading into the case after the nonsuit, and that's in
9 the Court's -- the supreme court said that that -- the
10 nonsuit ended the case. It was over at that point.
11 There should be no more claims - whether they're
12 hearings or not - there's no more orders. The case is
13 over.
14 And so I also wanted to point out that in
15 their responsive -- the response to our motion -- our
16 plea to the jurisdiction which I'm not sure that you-all
17 have because it was filed about 5:00 last night. Did
18 you-all get that?
19 THE COURT: The response --
20 MS. CANTRELL: Their response to our plea.
21 THE COURT: Yes, I got it right here.
22 They gave me this notebook which is their courtesy copy.
23 MS. CANTRELL: Okay. Could you please
24 look for me on -- at Paragraph 33 and 36 of their
25 response because I would like to correct the record on a
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
21
1 couple of misstatements in there about timing and dates
2 which I think the records -- the documents we have
3 admitted will speak for themselves.
4 Paragraph 33 says that "Further in his
5 counter and cross-petition filed prior to the Court
6 signing Daniel's request for dismissal" - that is not
7 correct. The counter and cross-petition was filed after
8 the Court signing Daniel's request for dismissal - the
9 dates being March 24th for the counter and
10 cross-petition and March 16 on signing the dismissal.
11 And that error is repeated in Paragraph 36 where it
12 says, "In subsequent to Daniel's nonsuit but prior to
13 the entry of dismissal, Mr. Weiner's cross and
14 counter-petition was filed." That's the same error. It
15 is incorrect on the dates. Daniel's nonsuit predated,
16 and his dismissal predated, the cross or the counter and
17 the cross-petition. so·, I would -- I'd 1 ike to correct
18 the record on those two things.
19 THE COURT: Okay. Just quite simply: We
20 view the pleading filed on March 24th by Andy Weiner
21 whose counter and cross-petition, we view that as an
22 original petition. I mean, I know it's titled, "Counter
23 and Cross-Petition" but we view it as an original
24 petition. And so
25 MS. CANTRELL: Your Honor, could we look
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
22
1 at the local rules, then, on the numbering, the case
2 numbering, on original petitions that are in evidence?
3 THE COURT: Okay.
4 MS. CANTRELL: It says, "All matters
5 relating to or appertaining to an estate or
6 guardianship -- "
7 THE COURT: Where are you reading from?
8 MS. CANTRELL: The Rule 2.2, the one they
9 cited in their response.
10 THE COURT: Okay.
11 MS. CANTRELL: "All matters relating or
12 appertaining to an estate or guardianship," which this
13 does not, "that has not been closed as provided in the
14 Probate Court Code including proceedings upon trust
15 created by decedent's will," which this is not -this is
16 an inter vivos trust, "shall remain in such court
17 subject to an order of transfer as with any case and
18 shall retain the original docket number with an
19 appropriate sub file."
20 So, if it's an original petition, it
21 should have its own separate case number according to
22 the way I read these rules.
23 "Each subsequent matter filed involving
24 the same decedent or Proposed Ward," which this does not
25 involve, "shall be filed in the original file under the
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
23
1 same docket number and in the same court as the original
2 filing."
3 So, I do not see under these rules how
4 they can file a brand new petition into a case that has
5 been nonsuited. I don't dispute that they could file a
6 brand new lawsuit and they're welcome to. They will --
7 they've already raised the construction issues in the
8 district court case; so those are already before the
9 district court case. So, it would be duplication if it
10 reads the same way as their counter and cross-petition.
11 MS. PACHECO: Actually, they're part of an
12 affirmative answer, and there is a plea to abate in the
13 district court case saying this court has jurisdiction.
14 MS. CANTRELL: I have a copy of that
15 pleading. Well you've got it in evidence.
16 THE COURT: Okay. So, if we view this as
17 an original petition, does it need to go back to
18 should it have gone through the process of being
19 assigned to another probate court?
20 MS. PACHECO: I don't know the answer to
21 that. That's never been my experience. My experience
22 with the Clerk's Office in 20-plus years, if it relates
23 to the exact same cause number or style of the
24 original - it always goes back to that case. They get
25 very upset when you start picking new courts which is
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
24
1 part of the reason you have assigned it back to the same
2 court which is clearly intention of the local rules.
3 MS. CANTRELL: And, Your Honor, I have the
4 Government Code Section 25.1034 which this Rule 2.2
5 refers to, and it does talk about the random
6 assignments. And it says, "The county clerks will keep
7 a separate docket for each court. The County Clerk
8 shall assign and docket as random matters and
9 proceedings filed in the statutory probate courts
10 according to the following percentages:
11 "Probate Court Number 1 - 30 percent;
12 Probate Court 2 - 30 percent; Probate Court 3 - 20
13 percent; Probate Court 4 - 20 percent."
14 So, this is the random assignments. You
15 may be familiar with this.
16 MS. PACHECO: That's a Clerk's Office
17 function. If the Court wants to tell them to reassign
18 it a new cause number, it doesn't change the filing it
19 attaches to the courts - it's just a matter who hears
20 it. But I've never seen a case where the case was
21 already before a court that even if it was assigned to
22 another court, it wasn't immediately transferred back
23 under administrative transfer powers.
24 MS. CANTRELL: I have no problem --
25 THE COURT: We can go through that -- we
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
25
1 can go through the motions of -- I can send the file
2 back to the Clerk's Office for random assignment. But
3 then whatever judge in Harris County gets it is going to
4 see that we've got two other related cases, and they're
5 going to send it back.
6 MS. CANTRELL: Your Honor, I would submit
7 that they need to file a brand new lawsuit in starting
8 all over.
9 MS. PACHECO: Of course, she does because
10 she wants to try and get to her district court. This is
11 a game. It is a vile game that has been played for a
12 year and a half. It is offensive.
13 MS. CANTRELL: It is not a game; it is
14 called following the rules.
15 MS. PACHECO: No, this isn't following the
16 rules. This isn't the spirit of the Code of
17 Professional Conduct. This isn't the spirit of the
18 Rules of Professional Procedure. There is nothing
19 appropriate about the actions that have been taken in
20 this case.
21 MS. CANTRELL: There is
22 MS. PACHECO: I'm going to be quiet
23 because I'm about to be unprofessional myself.
24 THE COURT: You know, I'm just not going
25 to do anything about -- I view this as an original
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
26
1 petition. I don't care what it's called. And I'm not
2 going to do anything about the sending it to the Clerk
3 for random reassignment. I really don't -- I've never
4 had this issue come up, and I'm just not going to do
5 anything about it. And, I mean, and you can, you can
6 appeal these decisions, of course. And so, I mean,
7 that's what I suggest you do. But I view this as an
8 original petition and that's just, that's just how I
9 reasonably view it. And so I could be wrong about that
10 but --
11 MS. CANTRELL: Your Honor, there is a case
12 by Justice Bland who is the same one that wrote the
13 opinion in Michael's case --
14 MS. PACHECO: Your Honor, I have a
15 proposed order on the dismissal of the plea and the
16 jurisdiction. I would ask that the Court enter it.
17 THE COURT: Well what were you saying?
18 MS. CANTRELL: The Court says this:
19 "After the trial Court lost plenary
20 power," this involved a nonsuit, and your plenary power
21 expired 30 days after the March 16th dismissal under
22 Section 329(b) of the Rules of Civil Procedure, "after
23 the Court, trial Court, lost plenary power it granted a
24 plea to the jurisdiction. Because the trial Court had
25 lost its plenary power, the Trial Court's order granting
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
27
1 the plea is void. An appellate Court should declare
2 post-plenary power orders void."
3 And that is my position that any order in
4 this case past April 16th, according to every case I
5 have read, is void.
6 In this case, now they can file a brand
7 new lawsuit, but the jurisdiction in this case is over
8 starting with the nonsuit and 30 days thereafter when
9 the plenary power expires. That is just according to
10 the rules.
11 You can call it gamesmanship as Ms.
12 Pacheco likes to do frequently, but it's playing by the
13 rules. It is to prevent this exact same thing
14 happening; otherwise, the right to nonsuit would be
15 illusory. You could never nonsuit because someone could
16 simply counter-claim you right back in which is exactly
17 what happened. And this case is -- this would be not
18 only void but it would be an interlocutory order and
19 that does not qualify for permissive appeal because it's
20 not a situation where there's substantial ground for
21 disagreement.
22 REBUTTAL ARGUMENT BY MS. PACHECO:
23 MS. PACHECO: One, that case doesn't apply
24 under this circumstance; and two, again Counsel
25 completely ignores how the law does not approve of forum
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
28
1 shopping which is exactly what's happened in this case.
2 We obtained rulings on summary judgments. We did all
3 that. She, again, incurred thousands and thousands of
4 dollars of legal fees. And then she tried to get out of
5 this court 'cause she didn't like where it was going and
6 go find a different shore. That is flat-out forum
7 shopping. This isn't even a different county - it's a
8 different court; different floor; different court; same
9 courthouse.
10 So, I don't see how any of that is
11 appropriate or relevant to the issues in this case.
12 MS. CANTRELL: The plaintiff has a perfect
13 right to choose his forum that's why Wyatt versus Shaw
14 Plumbing is the case that Michael's case went up on
15 appeal over.
16 MS. PACHECO: And Mr. Weiner has done that
17 when they chose to take their ball and try and get
18 different rulings at a different court. And now he is
19 the Plaintiff, and he has chosen the Harris County
20 Probate Courts, wherever he be assigned, including the
21 judge who is very educated on this process.
22 MS. CANTRELL: Your Honor, I have an order
23 dismissing Andy Weiner's counter and cross-claim and
24 dismissing this entire case.
25
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
29
1 COURT'S RULING
2 THE COURT: Okay. I'm not going to
3 dismiss it. And I could be wrong on when I sign this
4 order on the plea to the jurisdiction. I guess, I'm
5 just -- I'm frustrated because at the beginning of this
6 case then Andy Weiner wanted it moved over to the family
7 court. And so we -- when I looked at the case, I
8 thought, you know, clearly this is within the language
9 of the divorce decree, right? The divorce decree. And
10 I know I'm going back years, but the divorce decree, if
11 I remember right, said that they were to be trustees and
12 that they weren't supposed to seek the removal of either
13 of them. I don't remember exactly what the language
14 was. So, I thought, well, you know, a judge over there
15 is one who signed that order or that decree, and they
16 need to go back and determine if this is, in fact, a
17 violation of that decree. I was wrong about that. So,
18 that came back to us.
19 And now the Warren children are wanting to
20 move their cases to district court. And it's, in my
21 view, it doesn't serve the interest of either party or
22 either -- or any of the parties to be jumping around
23 courts especially you guys have both invested a lot of
24 time, energy, and money in this court. And it feels
25 like forum shopping to me. And they've invested a lot
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
30
1 of effort and money and time when they, over the course
2 of this case, and I can't just dismiss it. And I could
3 be wrong. I mean, I could be wrong that my plenary
4 powers expire 30 days after I sign the order dismissing
5 the case. But that's not the way I view it. I view
6 this as, in essence, an original petition being filed.
7 And maybe it should have been funneled through the
8 Clerk's Office and assigned to a different court. I
9 don't know. But I'm not going to dismiss it over
10 something procedural like that.
11 So, you know, I'm going to have to just do
12 what I think is right and let the appeals court deal
13 with it. So, that's all I know how to do.
14 MS. CANTRELL: Yes, Your Honor.
15 MS. PACHECO: Your Honor, while we're
16 here, may I make one last request that has nothing to do
17 with this motion. And you raised this at the last
18 hearing.
19 Ms. Cantrell has the propensity to contact
20 your staff and email them and elicit comments and then
21 quote them, now in mandamuses and other proceedings. I
22 recognize it's your prerogative to allow us to do that,
23 and you've been very accommodating to move things along.
24 Given what she has contorted some of those statements to
25 be, I would request that if any requests should be made,
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
31
1 they should be made in open hearings with a record so
2 it's not this back and forth convoluted process and then
3 attempt to put an email in the record.
4 I recognize -- I'm a believer in
5 cooperative courts, and y'all have always been
6 cooperative, but I feel that now she tries to get
7 answers and then use those in future proceedings and
8 it's just improper.
9 She has suggested court staff has given
10 her legal advice which hasn't -- I'm not staying it
11 happened, but I just think it needs to stop. I mean, to
12 the extent we request a hearing, the request should be I
13 want to set a hearing on ''X" date - not the going back
14 and forth because I feel like we have crossed the line,
15 or perhaps all sides, in this case. And because of the
16 nature of this case, I would ask that you direct all
17 parties to stop emailing anything substantive to the
18 Court and put in a pleading.
19 THE COURT: Okay.
20 MS. CANTRELL: I thought you did that
21 already, Your Honor, at the last hearing. You did ask
22 us -- well, to put everything in emails so now the
23 request I'm hearing is not to even email?
24 THE COURT: Well, I mean, the thing is,
25 this is the limits -- I mean, we're bound by judicial
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
32
1 ethics, and I'll say this. What I said before is we've
2 kind of been -- we've done our best to abide by those
3 ethical requirements, but I will say that in estate and
4 guardianship matters where we're dealing with a lot of
5 pro se litigants then quite often we will give advice
6 that borders on, you know, it may go beyond just
7 procedural, and it may be even bordering on legal
8 advice. And we do that because we view that sometimes
9 it's just, it's expeditious for the protection of a Ward
10 especially, okay. We don't want anything bad to happen
11 to our Wards, and we view that as our highest priority.
12 This case is totally different, okay. And
13 the only thing that you guys, as you know, are permitted
14 to visit with our staff about is procedural issues. And
15 so beyond that, we shouldn't receive any communication
16 if it has nothing if it goes beyond procedural, we
17 are not permitted to receive it.
18 MS. CANTRELL: Your Honor, I understand
19 that, and I think that was clear at the last hearing.
20 I'm not sure why it's coming up again.
21 MS. PACHECO: It's coming up because now
22 she's quoting emails in mandamuses. And what I've come
23 to realize is you call it procedural issues, but
24 technically, what she should be communicating with the
25 Court about is setting hearings. I mean, she can't get
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
33
1 her procedural questions answered by this Court either.
2 If she wants to know what the Court wants to do on a
3 particular issue, I'm always happy to come down here and
4 have a status conference with a record, and we can deal
5 with it in the proper way.
6 166(g), under the Rules of Procedure, is
7 intended to address procedural issues on notice and
8 pleading. But what has happened in this case is she's
9 sort of contorting those communications into other
10 things; and frankly, I don't like having arguments with
11 Counsel where, you know, colleagues or anybody
12 associated with the Court are copied on those. It just,
13 you know -- and there's embedded comments in there.
14 I understand -- I'm not saying it should
15 be in every case, and I certainly, I said this last time
16 and I'm going to say it on the record - I am not
17 implying this Court has done anything other than be
18 excessively cooperative to both sides. But Ms. Cantrell
19 then contorts those into advice; and, you know, it's not
20 even with you, but your staff is an arm of you and it
21 can be deemed as ex parte communication or she's trying
22 to argue the Court told her to do something. It's
23 improper. And she's not seeing the limits of those, and
24 yet again, when we're setting things, there's a lot of
25 back and forth that included Judge Comstock. I just
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
34
1 think this needs to stop because it's an unusual case
2 with unusual parties and unusual counsel and perhaps
3 this is one where other than asking for setting a
4 hearing, everything else needs to be on the record to
5 avoid this happening again.
6 THE COURT: Okay.
7 MS. CANTRELL: These emails with the order
8 on the severance, I'm not sure who initiated those but
9 it certainly wasn't me. I mean, but we have discussed
10 this over and over at the last hearing.
11 THE COURT: Well no, no because the Court
12 can discuss procedural issues with lawyers, but when
13 but that is such a -- you know, when you talk about
14 procedure versus giving legal advice, I think there is a
15 lot of overlap there. And here, you know, you guys are
16 seasoned lawyers. You guys know the procedures.
17 There's no reason why you need to be visiting with us
18 over -- about anything other than scheduling hearings.
19 So, I think it's very fair that Ms. Pacheco request that
20 we limit our all-communication.
21 MS. CANTRELL: Yes, Your Honor, I agree.
22 We did that already. I'm not sure what it is that made
23 her bring it up again.
24 THE COURT: I don't even see these emails.
25 I don't know. But if there is something that goes
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
35
1 beyond the bounds of simply setting hearings then --
2 MS. PACHECO: There's a discussion of
3 pulling down certain hearings, we're going to go in a
4 different direction. All of that is beyond what should
5 be communicated in emails. They're not part of the
6 Court's record and yet she tries to admit them.
7 Again, I've never made this request, but
8 I've never had a case quite like this. And I'm very
9 appreciative that we can approach you on any normal case
10 and ask reasonable questions with Counsel copied. This
11 is just not that case.
12 MS. CANTRELL: But Counsel was copied on
13 those emails and it was initiated --
14 MS. PACHECO: But it's a rally back and
15 forth. It's an ex parte communication and then Counsel
16 is forced to respond and your staff is then watching
17 this volley back and what do you do with that thing? Do
18 you show it to you? Does it go in the Court's file?
19 THE COURT: It doesn't get to me, but it
20 does in a sense because if it gets to anyone of our
21 staff it gets to me. I mean, it's deemed that I have
22 viewed it, okay. And so because they are an extension.
23 The staff is, of course, an extension of me.
24 And, you know, the truth is, I view those
25 emails as ex parte even though it copies Counsel. It's
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
36
1 still an ex parte communication, and this is why:
2 Because it does force the other side to have to respond.
3 It does bring the other side into like almost a secret
4 hearing in a way. I mean, you're putting information
5 out there or questions out there and forcing the other
6 party in to respond. I don't know what else to say
7 except that if someone makes a request that we limit
8 receipts of emails and communication by email and phone
9 to scheduling hearings. I think that's a reasonable
10 request and especially because you guys can call up any
11 time and set a hearing, and you'll have it, you know. I
12 mean, it's not like I'm not here, you know.
13 MS. CANTRELL: I'm just confused about
14 what it is Ms. Pacheco is concerned about if it was
15 MS. PACHECO: I don't want to have a
16 discussion of the substance of all emails. I think
17 everybody's aware, probably not you because you haven't
18 seen them, of what's been going on. I just think it
19 needs to stop.
20 And again, she, just like the offering of
21 this email today, some emails that are going to happen
22 to show up in the mandamus - it doesn't matter the
23 substance. I'm not complaining anything's improper at
24 this point - I just think in the future on an on-going
25 basis, to avoid future issues, that I would ask the
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
37
1 Court to direct all counsel, us included, to limit our
2 contacts with this Court to requesting hearings which I
3 think is the conservative and appropriate means to
4 communicate with the Court because I do want a record
5 any time Ms. Cantrell communicates with this Court.
6 THE COURT: Okay. So, just I guess going
7 forward, all communication needs to be with setting
8 hearings only and
9 MS. CANTRELL: I agree, Your Honor. I
10 think you made that clear to us last time.
11 THE COURT: Okay. Ms. Pacheco, do you
12 want to sign this?
13 MS. PACHECO: I apologize. Thank you.
14 THE COURT: Thank you.
15 MS. PACHECO: May I be dismissed?
16 THE COURT: Yes.
17 MS. PACHECO: Thank you.
18
19
20 * * * * *
21
22
23
24
25
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
38
1 The State of Texas
2 County of Harris
3
4 I, Hipolita Lopez, Official Court Reporter in and
5 for the Probate Court Number Four of Harris County,
6 State of Texas, do hereby certify that the above and
7 foregoing contains a true and correct transcription of
8 all portions of evidence and other proceedings requested
9 in writing by counsel for the parties to be included in
10 this volume of the Reporter's Record, in the
11 above-styled and numbered cause, all of which occurred
12 in open court or in chambers and were reported by me.
13 I further certify that this Reporter's Record
14 truly and correctly reflects the exhibits, if any,
15 admitted by the respective parties.
16 I further certify that the total cost for the
17 preparation of this Reporter's Record is $288.00
18 and was paid by Cantrell & Cantrell
19 WITNESS MY OFFICIAL HAND this the 19th day of
20 May, 2015.
21
/s/ Hipolita G. Lopez
22 HIPOLITA G. LOPEZ, Texas CSR #6298
Expiration Date: 12-31-16
23 Official Court Reporter
Probate Court Number Four
24 Harris County, Texas
201 Caroline, 7th Fl.
25 Houston, Texas 77002
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
FILED
4/17/2015 2:48:53 PM
Stan Stanart
County Clerk
Harris County
PROBATE COURT 4
No. 425,576-401
IN RE: § IN THE PROBATE COURT
§
DANIEL STEVEN WEINER § NO. 4
§
1996 TRUST § HARRIS COUNTY, TEXAS
PLEA TO THE JURISDICTION
Daniel Warren files this Plea to the Jurisdiction in response to Andy Weiner’s Counter and
Cross-Petition.
SUMMARY OF THE ARGUMENT
1. Daniel Warren asks the Court to dismiss Andy Weiner’s Counter and Cross-Petition
because it was filed after Daniel Warren nonsuited all of his claims and the court lacks
jurisdiction to rule on it under the holding of Greenberg v. Brookshire,

640 S.W.2d 870

(Tex.
1982).
BACKGROUND
2. Daniel Warren is the sole beneficiary of the Daniel Steven Weiner 1996 Trust (the
“Trust”). The Trust was created on March 20, 1996 by Andy I. Weiner and Katherine R.
Warren (formerly Katherine F. Weiner), who are also the co-trustees.
3. On April 22, 2014, Daniel Warren filed a Plea in Intervention in Cause No. 425,577,
In Re David Abraham Weiner 1994 Trust, suing Andy Weiner for breach of fiduciary duty
for borrowing substantially all of the Trust assets for Andy Weiner’s own personal use,
commingling the Trust assets with Andy’s personal funds, failing to prudently invest the
Trust assets, and failing to render an accounting upon Daniel’s request.
4. On July 8, 2014 Andy Weiner asserted various affirmative defenses, including that his
EXHIBIT
exhibitsticker.com
1
TAB F
“actions were justified, excused and/or authorized by the terms of the Daniel Steven Weiner
1996 Trust” and “Ambiguity.” [See attached Exhibit A]
5. On October 24, 2014 Andy Weiner filed a Second Amended Cross-Claim against
Katherine Warren in Cause No. 425,577 seeking to hold Katherine responsible for any
damages, actions, inactions, and violations of the Trust Agreement, breach of her fiduciary
duty, removal, tortious interference with Andy’s ability to properly administer the Trust, and
reimbursement of Andy’s legal fees in defending the lawsuit.
6. On November 17, 2014 the Court severed Daniel Warren’s suit against Andy Weiner
into a separate Cause No. 425,576-401, and ordered 24 docket entries to be moved to the
new case. [See attached Exhibit B] The Cross-Claim was not moved and remained in Cause
No. 425,577.
7. Pursuant to the November 17, 2014 Order, Daniel Warren filed an Original Petition in
this Cause No. 425,576-401 on December 1, 2014 asserting the same claims as in his Plea in
Intervention filed in Cause No. 425,577. The Original Petition named Andy Weiner and
Katherine Warren as parties, but expressly stated that his Notice of Nonsuit against Ms.
Warren applies to this Cause No. 425,576-401.
8. On February 10, 2015, Daniel challenged Andy Weiner’s Answer and Supplemental
Answer by Special Exceptions. After a hearing on the matter on February 17, 2015, the Court
ordered Andy Weiner to replead nine (9) of his thirteen (13) defenses by March 17, 2015.
Andy Weiner failed to do so.
9. On March 10, 2015, Daniel Warren nonsuited all of his claims in this case and on March
16, 2015 the Court dismissed Daniel Warren without prejudice. [See attached Exhibit C].
10. On March 24, 2015, two weeks after Daniel Warren nonsuited his claims, Andy Weiner
2
filed a Counter and Cross-Petition against Daniel and Katherine, attempting to join them as
parties to the nonsuited case.
ARGUMENT & AUTHORITIES
11. Daniel Warren asks the Court to dismiss Andy Weiner’s Counter and Cross-Petition for
the following reasons:
12. Daniel Warren had an absolute right to nonsuit all of his claims on March 10, 2015 and
be dismissed from the case as long as it does not “prejudice the right of an adverse party to
be heard on a pending claim for affirmative relief.” (emphasis added) [TRCP 96, 162].
13. The right to nonsuit should be liberally construed in favor of the nonsuiting plaintiff.
[Greenberg v. Brookshire,

640 S.W.2d 870

, 872 (Tex. 1982)].
14. When the defendant has no pending claims for affirmative relief, the plaintiff’s nonsuit
renders the merits of the underlying case moot and dismisses the entire case. A trial court
may not rule on a counter or cross claim filed after a nonsuit.

[Greenberg, 640 S.W.2d at 871

].
15.     Andy Weiner’s failure to replead the nine (9) affirmative defenses as ordered by the
Court left Andy’s only defenses as 1) that Daniel is not entitled to attorney fees, 2) Daniel
lacks standing, legal authority or capacity to sue, 3) Daniel’s claims are barred by the statute
of limitations, and 4) Daniel’s claims are barred because he has no legal or equitable basis
for recovery. [See attached Exhibit D]. These are not claims for affirmative relief under
TRCP 162.
16. Since Daniel has dropped all his claims, both the claims and the defenses in this case are
moot. A trial court has no jurisdiction to rule on a moot controversy. [Klein v. Hernandez,
3

315 S.W.3d 1

, 3 (Tex. 2010; Devon Energy Prod. Co., L.P. v. KCS Res., LLC,

450 S.W.3d 203

, 209 (Tex. App.─Houston [14th Dist.] 2014, pet. pending on other grounds)].
17. In Greenberg v. Brookshire, the wife filed a counterclaim against her husband two days
after he nonsuited his divorce case against her. Over the husband’s objections, the trial judge
held a hearing on the wife’s counterclaim and entered an order pertaining to it.            In a
proceeding for mandamus relief, the Texas Supreme Court held that the trial judge should
not have proceeded with the hearing on the counterclaim and directed him to withdraw his
order pertaining to it. [Greenberg v. Brookshire,

640 S.W.2d 870

(Tex. 1982)].
18.   When a plaintiff files a nonsuit, the trial court loses jurisdiction of the entire case,
except jurisdiction to render the order of dismissal without prejudice, which this Court has
done. [Ault v. Mulanax,

724 S.W.2d 824

, 828 (Tex. App.─Texarkana 1986, orig.
proceeding), also citing Greenberg v. Brookshire].
19. Similarly, in Ault v. Mulanax the defendant filed a cross-action against the plaintiff after
she had nonsuited all of her claims. The appeal court held that the trial court lost jurisdiction
of the entire case immediately upon the filing of the plaintiff’s nonsuit, except jurisdiction to
render the order of dismissal without prejudice.

[Ault, 724 S.W.2d at 829

].
20. Just as in Greenberg and Ault, when Daniel nonsuited this case, there were no pending
claims for affirmative relief filed by any party. As such, the trial court’s only recourse is to
dismiss the entire case without prejudice, as the Court has done.
21. Andy Weiner’s cross-claims against Katherine Warren have no impact on this case.
They were filed only in Cause No. 425,577, a separate cause of action. Nor do Andy
Weiner’s Counter and Cross-Petition have any impact on this case because they were filed
4
after Daniel nonsuited his entire case. According, Daniel had an absolute right to dismiss his
entire case under the holding of Greenberg v. Brookshire.
22. A trial court cannot deny a litigant's right to nonsuit his case when affirmative relief is
not sought by an adverse party before the nonsuit. [Greenberg v. Brookshire,

640 S.W.2d 870

, 871 (Tex. 1982)]. Andy Weiner had no claims for affirmative relief pending at the time
of Daniel’s nonsuit.
23. Accordingly, the Court should dismiss this entire case and Andy Weiner’s Counter and
Cross-Petition as it was filed after Daniel nonsuited his entire case.
RELIEF REQUESTED
24. For these reasons, Daniel Warren asks the Court to set this Plea to the Jurisdiction for a
hearing and sign an order dismissing Andy Weiner’s Counter and Cross-Petition and this
entire case for lack of jurisdiction.
Respectfully submitted,
CANTRELL & CANTRELL, PLLC
By: /s/ Carol A. Cantrell
Carol A. Cantrell, Attorney for Daniel Warren
State Bar No.: 24043592
Meredith N. McIver
State Bar No.: 24078974
Cantrell & Cantrell, PLLC
3700 Buffalo Speedway, Suite 520
Houston, Texas 77098
Telephone: (713) 333-0555
Facsimile: (713) 333-0550
ccantrell@cctaxlaw.com
5
CERTIFICATE OF SERVICE
I do hereby certify that a true and correct copy of the foregoing instrument has been
duly served by electronic delivery and facsimile on all parties and counsel of record indicated
below, on April 17, 2015.
Sarah Patel Pacheco Thomas R. Conner
Kathleen Tanner Beduze Conner & Lindamood, P.C.
Crain Caton & James 1221 Lamar, Suite 1010
Five Houston Center, Houston, TX 77010
1401 McKinney, 17th Floor tom@lawcl.com
Houston, TX 77010 713-654-8115 (facsimile)
pacheco-efile@craincaton.com ATTORNEY FOR KATHERINE R. WARREN
713-658-1921 (facsimile)
ATTORNEY FOR ANDY WEINER
/s/ Carol Cantrell
CAROL A. CANTRELL
6
Oct. 23. 2013 3:35PM No.

1344 P. 24

NO_ 425,577
INRE: § IN PROBATE COURT
§
DAVID ABRAHAM WEINER § NUMBER FOUR (4) OF
§
1994 TRUST § HARRIS COUNTY, TEXAS
ANSWER TO PETITION FOR TERMINATION OF TRUST
TO THE HONORABLE JUDGE OF SAID COURT:
Andy Weiner ("Mr. Weiner"), co-trustee of the David Abraham Weiner 1994 Tmst
("Tmst''), files this Answer to Original Petition for Termination of Tmst filed by Katherine F.
Warren ("Ms. Warren") and David A Weiner kin/a David W. Wro-ren ("David"), and in suppOlt
thereof respectfully shows the following:
I.
Overview
1. Tho Original Petition for Termination of Trust ("Petition") is just anothe1· sad stage in
Ms. Warren's systematic plan to exclude Mr. Weiner from his son's life. Mr. Weiner and Ms.
Warren are currently patties to a family coUlt proceeding that arises from Ms. Warren's failure to
comply with the terms of the Trust and a Judgment entered by the Family Court in their divorce,
pending in the 309111 Judicial District Court of Harris County, Texas.
2. The Petition filed Jn this Comt seeks to gain complete control of funds gifted by Mr.
Weiner's parents to the Trust established by both Mr. Weiner and Ms. Warren prior to their
divorce. It cites no credible or legal basis to remove Mr. Weiner and/or terminate the Trust by
distributing said funds either free of trust to David or into a Uniform Transfers to Minors Act
account only Ms. Wan·en would control. And, while Mr. Weiner has historically attempted to
accommodate Ms. Warren's various requests, he is unwilling to risk funds needed for David's
EXHIBIT
exhibitsticker.com
A
onawoo]()Ql
l76- 942296vl
Oct. 23. 2013 3:35PM No.

1344 P. 25

future education or sanction her ignoring provisions of a Judgment entered by the Family Court
in their divorce.
3. Neither Mr. Weiner nor the named successor trustee is disqualified to serve as a trustee of
the Trust. Mr. Weiner has never mishandled the Trust, has never harbored any hostility towai"ds
David and has always acted in a prudent ffit\lll\er- even under the most difficult of circumstances
created by Ms. Warren. Mr. Weiner has done so because he recognizes that David and the T!.·ust
both need protection.
II.
B@ckgro!lnd
4. On December 13, 1994, Mr. Weiner and Ms. Warren established the Tmst for the benefit
of their then-minor son, David. The irrevocable trust agreement provides that David is the
primaq beneficiary and Mr. Weiner and Ms. Wan·en are the original co-trustees. In the event
they are not able to serve, the tmst agreement provides that Bayle Weiner Dt-ubel shall serve as
successor trustee.
5. Mr. Weiner's parents, David's grandparents, funded the Trust with the desire to provide
for their grandson's education,
6. After David's grandparents' generous gifts, Ms. Warren systematically excluded Mr.
Wehter and his family from David and his siblings' lives. By way of example, Ms. Warren
facilitated in David changing his last name from his father's (Weiner) to a name with no family
..
significance shortly after David's eighteenth birthday. And, Ms. Wan·en routinely belittled Mr.
Weiner, his mother and his sisters in front of his sons, includh1g David.
7. Ms. Wanen filed for. divorce and, pursuant to an Agreed Decree of Divorce ("Divorce
Decree") entered into by the 309th Judicial District Court of Hat1'ls County, Texas in Cause No.
2
.. -·-- . --·0928651000001.
376 • 942296v I
Od. 23. 2013 3:35PM No.

1344 P. 26

2011-01040 (the "Family Court Proceeding"), Mr. Weiner and Ms. Wanen were divorced on
March 29, 2012. See Exhibit C to Ms. Wanen's Petition.
8.      'rhe Divorce Decree addresses the Trust at issue in this case. Specifically, the Divorce
Decree provides:
l'f iS ORDERED lhnt lhe following children's lruols are h•!d In lno'voo~ble
lrusl~. which sh~ll conllnue   &$   wrlllen, and lhal each partY wlllclaxa any and all
·necessary slep~ to provide full r.1344     P. 27
m.
Answer to Petition fo1· Te1·mination of Trust
11.      Mr. Weiner incorporates by reference the allegations contained within tho preceding
Paragraphs 1 through 10.
A.      Ge1zeml Deulttl
12.      Mr. Weiner asserts a general denial, as authorized by Rule 92 of the Texas Rules of Civil
Procedure, to each a11d every, all and singular, allegation contained in the Petition and
respeptf\tlly requests that this Court and jury require Plaintiffs to ptove their claims, charges, and
allegations by a preponderance of the evidence, as required by the Constitution and the laws of
the State of Texas.
13.      Mr. Weinel' respectfully reserves the right to file an amended answer in this cause in the
manner authorized by the Texas Rules of Civil Procedure.
B.     Affinnative Defenses
14.      Pleading further and without waiving the foregoing, Plaintiffs' claims are barred in whole
or in part, by the doctrine of res judicata.
15.      Pleading further and without waiving the foregoing, Plaintiffs·' claims are halTed in whole
or in p·art, by the doctrine of estoppel, including collateral estoppel.
16.    · Pleading further and without waiving the foregoing, Plaintiffs' claims are barred in whole
or in pillt, by the doctrine of unclean hands:
17.      Pleading further and without waiving the foregoing, Plaintiffs' claims aro barred in whole
or in part, by the terms of the Trust.
18.      Pleading further arid without waiving the foregoing, Plaintiffs are not entitled to
attorneys' fees under Section 114.064 of the Texas Trust Code or otherwise.
4
092865/00000L
376. 942296\'1
Oct. 23. 2013 3:36PM                                                                   No. 
1344    P. 28
IV.
Request for Jury Tl'ial
19.       Pleading further, and without waiving the foregoing, Mr. Weiner demands a trial by jury
and hereby tenders payment.
v.
Request fol' })isclosul'e
20,        Pursuant to Rule 194 of the Texas Rules of Civil Procedure, Plaintiffs are each requested
to disclose, within 30   d~ys   of service of this request, the information or material described in
Rule l94.2(a)- (i).
WHEREFORE, Mr. Andy Weiner respectfully requests that Plaintiffs recovet nothing by
their suit, and for such other and further relief as to which he may show himself justly entitled to
receive.
Respectfully submitted,
CRAIN, CATON & JAMES,
A PROF •   NA CORPORATION
Attomeys for Andy Weiner
5
092MSI~9QOQI ..
376 -942296vl
Oct. 23. 2013 3:36PM                                                                 No. 
1344    P. 29
CERTIFICATE OF SERVlCE
I hereby certifY that a true and correct copy of the foregoing instrument has been forwatded to:
Carol A. Cantrell
Meredith N. Mciver
Cantrell & Cowan, PLLC
3700 Buffalo Speedway, Suite 520
Houston, Texas 77098
Facsimile: (713) 333-0550                                    . ~
by facsimile and/or certified mail, return receipt requested, on the~ay of October, 20l3.
6
09286S/OOOOO I
J76 :9m96vr ·
FILED
7/8/2014 3:34:04 PM
Stan Stanart
County Clerk
Harris County
NO. 425,577
IN RE:                                           §                   IN PROBATE COURT
§
DAVID ABRAHAM WEINER                             §                   NUMBER FOUR (4) OF
§
1994 TRUST                                       §                   HARRIS COUNTY, TEXAS
FIRST SUPPLEMENT TO ORIGINAL ANSWER
TO THE HONORABLE JUDGE OF SAID COURT:
Andy Weiner (“Mr. Weiner”), co-trustee of the David Abraham Weiner 1994 Trust, files
his First Supplement to Original Answer in response to Petitioner David W. Warren f/k/a David
A. Weiner’s (“Petitioner”) Second Amended Original Petition and Intervenor Daniel Steven
Weiner’s (“Intervenor”) Original Petition in Intervention and, in support thereof, respectfully
shows the following:
I.
VERIFIED DENIAL
1.       Intervenor does not have standing, lacks the legal authority, or lacks capacity to sue and
is not entitled to recover in the capacity in which he has sued.
II.
SUPPLEMENTAL AFFIRMATIVE DEFENSE
2.       Pleading further and without waiving the foregoing, Petitioner’s and Intervenor’s claims
are barred, in whole or in part, because Mr. Weiner’s actions were justified, excused and/or
authorized by the terms of the David Abraham Weiner 1994 Trust.
3.       Pleading further and without waiving the foregoing, Petitioner’s and Intervenor’s claims
are barred, in whole or in part, based on the equities.
4.       Pleading further and without waiving the foregoing, Petitioner’s and Intervenor’s claims
are barred, in whole or in part, because of ambiguity.
092865/000002
376 - 1096417v1
5.       Pleading further and without waiving the foregoing, Petitioner’s and Intervenor’s claims
are barred, in whole or in part, by the statute of limitations.
6.       Pleading further and without waiving the foregoing, Petitioner’s and Intervenor’s claims
are barred, in whole or in part, by the doctrine of comparative fault.
7.       Pleading further and without waiving the foregoing, Petitioner’s and Intervenor’s claims
are barred, in whole or in part, by the doctrine of contributory negligence.
8.       Pleading further and without waiving the foregoing, Petitioner’s and Intervenor’s claims
are barred, in whole or in part, because there is no legal or equitable basis for recovery.
9.       Pleading further and without waiving the foregoing, Petitioner’s and Intervenor’s claims
are barred, in whole or in part, by Katherine Warren f/n/a Katherine Friedman Weiner.
10.      Pleading further and without waiving the foregoing, Intervenor’s claims and/or defenses
are barred, in whole or in part, because of lack of standing and/or because he lacks a judiciable
interest in the David Abraham Weiner 1994 Trust.
III.
SUPPLEMENTAL PRAYER
11.      In addition to the relief sought in Mr. Weiner’s Original Answer to Petition to Terminate
Trust, Mr. Weiner prays that Petitioner David W. Warren f/k/a David A. Weiner takes nothing
by his Second Amended Original Petition and Intervenor Daniel Steven Weiner likewise takes
nothing by his Original Petition in Intervention, and for such other and further relief as to which
he may show himself justly entitled to receive.
2
092865/000002
376 - 1096417v1
Respectfully submitted,
CRAIN, CATON & JAMES,
A PROFESSIONAL CORPORATION
By: /s/ Kathleen Tanner Beduze
SARAH PATEL PACHECO
(TBA # 00788164)
KATHLEEN TANNER BEDUZE
(TBA # 24052205)
1401 McKinney, 17th Floor
Houston, Texas 77010
(713) 658-2323
(713) 658-1921 (Facsimile)
Attorneys for Andy Weiner
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been forwarded to:
Carol A. Cantrell / Meredith N.            Thomas R. Conner
McIver                                     Conner & Lindamood, P.C.
Cantrell & Cowan, PLLC                     1221 Lamar, Suite 1010
3700 Buffalo Speedway, Suite 520           Houston, Texas 77010
Houston, Texas 77098                       Facsimile: (713) 654-8115
Facsimile: (713) 333-0550
by e-file, facsimile and/or certified mail, return receipt requested, on the 8th day of July, 2014.
/s/ Kathleen Tanner Beduze
KATHLEEN TANNER BEDUZE
3
092865/000002
376 - 1096417v1
VERIFICATION
STATE OF TEXAS                       §
§
COUNTY OF HARRIS                     §
BEFORE ME, the undersigned authority, on this day personally appeared Andy I. Weiner
who, after being sworn, stated under oath that he is the person whose signature appears on this
document. The affiant has read the foregoing First Supplement to Original Answer and he verifies
that the information contained therein is true and correct based upon his personal knowledge.
einer, as Co-Trustee of the David
aham Weiner 1994 Trust
Subscribed and sworn to before me on this   ~ day of July, 2014.
NOTARY PUBLIC IN
OF TEXAS
4
Error! Unknown document property name.
No. 425 ,577
INRE:                                  §              IN THE PROBATE COURT
§
DAVID ABRAHAM WEINER                   §              N0.4
§
1994 TRUST                             §              HARRIS COUNTY, TEXAS
AMENDED ORDER ON MOTION TO SEVER
On this date, the Court having considered Daniel W. Warren' s Motion to Sever and the
Court's written and verbal Orders on August 27-28, 2014, GRANTS the Motion to Sever as
follows. It is hereby:
ORDERED that Daniel W. Warren shall restate the claims set forth in his Motion to
Sever as a new Original Petition by December 1, 2014 and complete service pursuant to the rules
that would apply to a new lawsuit. It is further,
ORDERED that the Court Clerk assign Cause No. 425 ,576-401 to Daniel W. Warren 's
new Original Petition. It is further,
ORDERED that Daniel W. Warren file all future pleadings, motions, and other papers
under Cause No . 425 ,576-401 as Petitioner rather than Intervenor. It is further,
ORDERED that all prior discovery, orders, motions, responses and answers pertaining to
Daniel W. Warren in Cause No. 425 ,577 shall apply in the same manner as if such had occmred
in Cause No. 425 ,576-401 , and that the Clerk of this Court is hereby directed to transfer and file
copies ofthe following pleadings and orders from Cause No. 425,577 to Cause No. 425,576-401:
1.      Daniel W. Warren's Original Petition in Intervention; docket entry date 4-22-14
2.      Andy Weiner's Motion for Partial Summary Judgment (a copy of which shall
remain filed in Cause No. 425 ,577); docket entry date 7-15-14
3.      Andy Weiner' s Special Exceptions to the Original Petition in Intervention filed by
Daniel W. Warren; docket entry date 8-5-14
4.      Notice of Submission of Andy Weiner 's Motion for Partial Summary Judgment (a
copy of which shall remain filed in Cause No. 425 ,577) ; docket entry date 8-5-14
5.      Petitioners ' Notice of Nonsuit Against Katherine Warren (a copy of which shall
remain filed in Cause No. 425 ,577); docket entry date 8-7- 14
EXHIBIT
exhibitsticker.com
B
6.     Andy Weiner' s Motion to Compel Depositions (a copy of which shall remain
filed in Cause No. 425 ,577); docket entry date 8-14-14
7.     Petitioners ' Joint Motion for Partial Summary Judgment (a copy of which shall
remain filed in Cause No. 425 ,577); docket entry date 7-1-14
8.     Motion for Continuance of Hearing on Motion for Pru1ial Summary Judgment (a
copy of which shall remain filed in Cause No . 425 ,577); docket entry date 8-14-
14
9.     Petitioners ' Response to Andy Weiner' s Motion to Compel (a copy of which shall
remain filed in Cause No . 425 ,577); docket entry date 8-18-14
10.    Andy Weiner' s Special Exceptions to Petitioners ' Joint Motion for Partial
Sunm1ary Judgment (a copy of which shall remain filed in Cause No. 425 ,577);
docket entry date 8-22-14
11.    Petitioners ' Response to Andy Weiner' s Motion for Continuru1ce (a copy of
which shall remain filed in Cause No. 425 ,577); docket entry date 8-25-14
12.    Petitioners ' Response to Andy Weiner' s Special Exceptions to Petitioners' Joint
Motion for Partial Swmnary Judgment (a copy of which shall remain filed in
Cause No. 425 ,577); docket entry date 8-25-14
13.    Order Granting Andy Weiner' s Special Exceptions to the Original Petition in
Intervention filed by Daniel W. Warren; docket entry date 8-29-14
14.    Order Denying Motion for Sanctions; docket entry date 8-29-14
15 .   Order Pru1ially Granting and Partially Denying Andy Weiner's Special
Exceptions to Petitioners' Joint Motion for Pru1ial Summary Judgment (a copy of
which shall remain filed in Cause No. 425 ,577) ; docket entry date 9-4-14
16.    Daniel W. Warren ' s Motion to Sever; docket entry date 9-8-14
17.    Order Partially Granting and Partially Denying Andy Weiner' s Motion for Prutial
Summary Judgment (a copy of which shall remain filed in Cause No . 425 ,577);
docket entry date 9-26-14
18.    Order Granting Motion to Sever; signed 11-5-14
19.    Colllt' s Docket Sheet; docket entry date 8-29-14
20.    Andy Weiner ' s First Supplement To Original Answer; docket entry date 7-8-14
21.    Petitioner' s Response to Andy Weiner' s Motion for Prutial Traditional SlllTimary
Judgment; docket entry date 8-5-14;
22.    Petitioner' s Application to Quash Deposition of Dru1iel Warren; docket entry date
8-11-14;
23.    Order to Compel Depositions Granted ; docket entry date 8-29-14; and
24.    Petitioner's Responses to Andy Weiner ' s Special Exceptions to Petition m
Intervention and Motion for Sanctions; docket entry date 8-19-14.
It is further,
ORDERED that Cause No. 425 ,576-401 is subject to the deadlines set out in the Agreed
Docket Control Order dated August 27, 2014 relating to Cause No. 425,577. It is further,
ORDERED that all costs related to the copying, transfer, and filing of items 1 through 24
herein be assessed against Daniel Warren. It is further,
ORDERED that if Daniel W. Warren fails to file a new Original Petition by the 1st day of
December, 2014 as Cause No. 425,576-401 , his pleading in Cause No. 425,577 will be
dismissed.
SIGNED on this _JJ_ day of /'J~                     ' 2014.
PRESIDING JUDGE
-"'
li"
425,576-401
IN RE:                                     §            IN THE PROBATE COURT
§
DANIEL STEVEN WEINER                       §           N0.4
§
1996 TRUST                                 §            HARRIS COUNTY, TEXAS
§
ORDER GRANTING PETITIONER'S NONSUIT AND DISMISSAL
The Court GRANTS Petitioner Daniel Warren ' s Notice of Nonsuit without prejudice and
dismisses his claims against Respondent Andy Weiner without prejudice.
Signed    ~o.>r~ \~         ,   2015
JUDGE CHRISTINE BUTTS
HARRIS COUNTY PROBATE COURT FOUR
EXHIBIT
exhibitsticker.com
C
No. 425,576-401
INRE:                                                §            IN THE PROBATE COURT
§
DANIEL STEVEN WEINER                                 §            N0.4
§
1996TRUST                                            §            HARRIS COUNTY, TEXAS
ORDER ON DANIEL           WARRE~
S SPECIAL EXCEPTIONS TO ANDY WEINER'S
ANSWER AND FIRST UPPLEMENT TO ORIGINAL ANSWER
After considering Daniel W. Want 's Special Exceptions to Andy Weiner's Answer and
First Supplement to Original Answe[ the pleadings, response, reply, affidavits, and other
evidence on file, the Court finds      l         at Daniel Wan-en's Special Exceptions should be
GRANTED and Andy Weiner should                   plead the following affirmative defenses and cure their
defects as follows:
1-\o   f'\CITUt 11 1Ultt'
~                   '
I. Paragraph 14 of Andy Weiner'} Answer, which reads: "Plaintiffs' claims are barred, in
whole or in part, by the doctrin~ of res judicata"
1.
~-X--- Granted             --t----                  Denied
!
2. Paragraph 15, of Andy Weiner'~ Answer, which reads: "Plaintiffs' claims are barred, in
whole or in part, by the doctrin9 of estoppel, including collateral estoppel"
'I
-----"1)(0---- Granted --+----Denied
3. Paragraph 16 of Andy Weiner's Answer, which reads: "Plaintiffs' claims are barred, in
whole or in patt, by the doctrin1 of unclean hands"
---fr--~ Granted                      '             Denied
4. Paragraph 17 of Andy Weiner'~ Answer, which reads: "Plaintiffs' claims are baned in
whole or in part, by the te1ms of the trust"
_ _)<,_,__ _ Granted --+----Denied
5. Paragraph 18, of Andy Weiner's Answer, which reads: "Plaintiffs' are not entitled to
attomey's fees under Section 11~.064 of the Texas Trust Code or otherwise"
_ _ _ _ _ Granted                )<                  Denied
EXHIBIT
--'-----
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ij
I,
1:
I
i
6. Para raph I of Andy Weiner'J IFirst Supplement to Original Answer, which states that
Petit oner "does not have stan'1ing, lacks the legal authority, or lacks capacity to sue
and i not entitled to recover in rhe capacity in which he has sued"
1
- - t - - - Granted                         ';(   Denied
7. Para raph 3 of Andy Weiner's first Supplement to Original Answer, which states that
Petitibner's "claims are barred, jn whole or in part, based on the equities"
lx         Granted             :             Denied
I
8. Para raph 4 of Andy Weiner's hrst Supplement to Original Answer, which states that
·b
Petitipner's "claims are barred, whole or in part, because of ambiguity"
I                              f
).{.   Granted                           Denied
{
I
9. Paragraph 5 of Andy Weiner's first Supplement to Original Answer, which states that
Petitioner's "claims are barred, i~ whole or in part, by the statute of limitations"
- - - - - Granted                                 Denied
10. Paragraph 6 of Andy Weiner's irst Supplement to Original Answer, which states that
Petitioner's "claims are barred in whole or in part, by the doctrine of comparative
fault"
I
_ __...,__ _ Granted - - +i't - - - - Denied
1
II. Paragraph 7 of Andy Weiner's Rirst Supplement to Original Answer, which states that
Petitioner's "claims are barred 'jin whole or in part, by the doctrine of contributory
negligence"                     .
_ __,.....__ _ Granted - - - 1 - i - - - Denied
12. Paragraph 8 of Andy Weiner's ·irst Supplement to Original Answer, which states that
Petitioner's "claims are barred m whole or in part, because there is no legal or
equitable basis for recovery"
- - - - <"(0-vlkd
13. Paragraph 9 of Andy Weiner's "rst Supplement to Original Answer, which states that
Petitioner's "claims are barrec in whole or in part, by Katherine Warren f/n!a
Katherine Friedman Weiner"
--XP----- Granted         ---+If---Denied
'
PRESIDING JUDGE
I
I
FILED
5/12/2015 5:02:57 PM
Stan Stanart
County Clerk
Harris County
PROBATE COURT 4
NO. 425,576-401
IN RE:                                         §                    IN PROBATE COURT
§
DANIEL STEVEN WEINER                           §                    NUMBER FOUR (4) OF
§
1996 TRUST                                     §                    HARRIS COUNTY, TEXAS
ANDY WEINER’S RESPONSE TO PLEA TO THE JURISDICTION
TO THE HONORABLE JUDGE OF SAID COURT:
Andy Weiner (“Mr. Weiner”), as co-trustee of the Daniel Steven Weiner 1996 Trust, files
his Response to Plea to the Jurisdiction filed by Daniel Warren f/k/a Daniel Steven Weiner
(“Daniel”), and in support thereof, respectfully shows the following:
I.
OVERVIEW
1.       Notwithstanding Daniel’s assertions to the contrary, Mr. Weiner’s claims against
Katherine Warren f/k/a Katherine Weiner (“Ms. Warren”) were properly on file when Daniel
filed his nonsuit. But, regardless, Mr. Weiner has an absolute right to initiate a new lawsuit to
resolve the construction and other issues pled in his Counter and Cross-Petition properly filed in
the above-referenced proceeding in accordance with Local Rule 2.2. Therefore, this Court
should retain the above-referenced lawsuit on its docket and deny Daniel’s Plea to the
Jurisdiction.
II.
FACTUAL BACKGROUND
2.       On March 20, 1996, Mr. Weiner and Ms. Warren established the Daniel Steven Weiner
1996 Trust (the “Trust”) for the benefit of their then-minor son, Daniel. The irrevocable trust
agreement provides that Daniel is the primary beneficiary and Mr. Weiner and Ms. Warren are
EXHIBIT
exhibitsticker.com
TAB F-1
092865/000001
376 - 1495732v1
the original co-trustees. In the event they are not able to serve, the trust agreement provides that
Bayle Weiner Drubel shall serve as successor trustee.
3.         Mr. Weiner’s parents, Daniel’s grandparents, primarily funded the Trust with the desire
to provide for Daniel’s education.
4.         After Daniel’s grandparents’ generous gifts, Ms. Warren systematically excluded Mr.
Weiner and his family from Daniel’s life, as well as the lives of his brothers, David and Michael.
By way of example, Ms. Warren likely facilitated the process of Daniel changing his last name
from his father’s (Weiner) to a name with no family significance on his eighteenth birthday.
And, in 2011, Ms. Warren deceitfully made ulterior plans to celebrate Daniel’s birthday to
purposefully exclude Mr. Weiner. Further, Ms. Warren routinely belittled Mr. Weiner, his
mother and his sisters in front of his sons.
5.         On January 6, 2011, Ms. Warren filed for divorce from Mr. Weiner. Pursuant to an
Agreed Decree of Divorce (“Divorce Decree”) entered into by the 309th Judicial District Court
of Harris County, Texas in Cause No. 2011-01040 (the “Family Court Proceeding” or “Family
Court”), Mr. Weiner and Ms. Warren were divorced on March 29, 2012.
6.         Subsequent to the parties’ divorce, Ms. Warren has continued her efforts to alienate their
children and has failed to comply with the terms of the Divorce Decree.
7.         On September 30, 2013, Ms. Warren, as co-trustee of the Trust, filed a lawsuit1 against
Mr. Weiner, seeking an order from this Court to terminate the Trust and for the Trust funds to be
distributed to a Uniform Transfers to Minors Act account created for Daniel’s benefit over which
Ms. Warren would have sole control, even though the Trust agreement and the Divorce Decree
provide otherwise. See Original Petition, attached hereto, without exhibits, as Exhibit A and
incorporated by this reference.
1
Cause No. 425,576; In re: Daniel Steven Weiner 1996 Trust, In Probate Court No. 4 of Harris County, Texas.
2
092865/000001
376 - 1495732v1
8.       On October 23, 2013, Mr. Weiner filed a Plea to the Jurisdiction in Cause No. 425576,
alleging that the District Court had jurisdiction over the claims brought by Daniel because they
related to the Family Court Proceeding.
9.       On November 4, 2013, Ms. Warren, as next friend of Daniel, filed a First Amended
Original Petition in Cause No. 425,576 in which she requests for the Trust to be modified to
allow Daniel to become his own trustee upon reaching the age of 18. See First Amended
Petition, attached hereto, without exhibits, as Exhibit B and incorporated by this reference.
10.      On November 21, 2013, the Probate Court granted Mr. Weiner’s Plea to the Jurisdiction
in Cause No. 425576.
11.      On April 22, 2014, Daniel filed an Original Petition in Intervention in his older brother
David Weiner’s proceeding against Mr. Weiner.2 See Original Petition in Intervention, attached
hereto, without exhibits, as Exhibit C and incorporated by this reference.
12.      On July 2, 2014, Mr. Weiner filed his Cross-Claims against Ms. Warren in Cause No.
425,577 (where Daniel was an Intervenor), seeking to hold Ms. Warren equally responsible for
(1) all actions and alleged inactions of the trustees, (2) all claimed damages and relief sought by
David and Daniel, (3) all violations of the Trust agreements, including any scheme of collusion,
(4) the preparation of an accounting, and (5) payment of one-half of Mr. Weiner’s attorneys’ fees
and costs. See Cross-Claims, attached hereto, without exhibits, as Exhibit D and incorporated by
this reference.
13.      On July 8, 2014, Mr. Weiner filed his First Supplement to Original Answer, alleging,
among other claims and defenses, that Daniel has no standing to intervene in David’s case. See
2
Cause No. 425,577, In re: David Abraham Weiner 1994 Trust, In Probate Court No. Four (4) of Harris County,
Texas (“David’s Case”).
3
092865/000001
376 - 1495732v1
First Supplement to Original Answer, attached hereto, without exhibits, as Exhibit E and
incorporated by this reference.
14.      On July 15, 2014, Mr. Weiner filed his Motion for Partial Traditional Summary
Judgment.
15.      On August 7, 2014, Mr. Weiner filed his First Supplement to Cross-Claims against Ms.
Warren, incorporating, by reference, the cross-claims and factual background supporting same
contained within his Motion for Partial Traditional Summary Judgment.
16.      Also on August 7, 2014, David and Daniel (as Intervenor in David’s Case) nonsuited
their claims against Ms. Warren in Cause No. 425,577.
17.      On September 8, 2014, pursuant to an order of this Court, Daniel filed a Motion to Sever
in David’s Case.
18.      On September 25, 2014, the Probate Court partially granted and partially denied Mr.
Weiner’s Motion for Partial Traditional Summary Judgment finding that, pursuant to the terms of
David’s Trust: (i) a trustee of the trust may retain, invest or reinvest in assets unproductive of
interest and wasting assets, (ii) the diversification required under the Texas Trust Code and
Texas common law, if any, does not apply to the Trust; (iii) Mr. Weiner and Ms. Warren had a
duty to jointly administer the Trust; (iv) in order to delegate her powers or duties to Movant as
co-trustee of the Trust, Ms. Warren must have filed a written instrument with the records of the
Trust; and (v) Mr. Weiner has no liability relating to his actions as trustee other than for acts and
omissions found to be made with gross negligence, bad faith or fraud.
19.      On October 24, 2014, Mr. Weiner filed his Second Amended Cross-Claims against Ms.
Warren in Cause No. 425,577. See Second Amended Cross-Claims, attached hereto as Exhibit F
and incorporated by this reference. As clearly expressed in the Second Amended Cross-Claims,
4
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the cross-claims relate to the David Abraham Weiner 1994 Trust as well as Daniel’s Trust
because, at the time of filing, Daniel’s intervention had not yet been severed into its own cause
of action. Exhibit F ¶1.
20.      On November 5, 2014, Daniel’s claims were severed into their own cause of action in the
instant proceeding. An amended order, specifically identifying the pleadings and orders to be
transferred into the new cause of action, was signed on November 17, 2014.3
21.      On December 1, 2014, Daniel, pursuant to this Court’s order, filed his Original Petition in
Cause No. 425,576-401.
22.      On March 10, 2015, Daniel nonsuited his claims against Mr. Weiner.
23.      On March 24, 2015, Mr. Weiner filed his Counter and Cross-Petition. See Counter and
Cross-Petition, attached hereto, without exhibits, as Exhibit G and incorporated by this
reference. In his Counter and Cross-Petition, Mr. Weiner (1) asked for the Court to construe the
language of the Trust agreement; (2) alleged the following cross/counterclaims against Ms.
Warren: breaches of fiduciary duty, reimbursement, removal as trustee, tortious interference with
administration; and (3) requested the appointment of a corporate trustee. While no monetary
claims were brought against Daniel, he was joined as a necessary party because he is the primary
beneficiary of Daniel’s Trust. See TEX. PROP. CODE § 115.011.
24.      On March 24, 2015, Mr. Weiner’s counsel took Ms. Warren’s court-ordered deposition.
Ms. Cantrell attended that deposition.
25.      On April 2, 2015, Daniel, along with his brothers, David and Michael, jointly filed an
Original Petition in the 133rd Judicial District of Harris County, Texas, Cause No. 2015-19320.
See Original Petition, attached hereto, without exhibits, as Exhibit H and incorporated by this
3
Due to an administrative error, Mr. Weiner’s Second Amended Cross-Claims were inadvertently left off of the list
of documents to be transferred to Cause No. 425,576-401.
5
092865/000001
376 - 1495732v1
reference. When the three related cases currently pending in Probate Court No. 4 of Harris
County, Texas (Cause No. 425,576-401, Cause No. 425,577, and Cause No. 425,578) are
compared to the District Court case, the parties and issues are the same.
26.      On April 17, 2015, Daniel filed a Plea to the Jurisdiction in this Court, alleging that Mr.
Weiner’s cross-claims against Ms. Warren, pled in his Second Amended Cross Claims and his
Counter and Cross-Petition, have “no impact on this case.” Motion at ¶21. As further discussed
below, Daniel’s request for dismissal is misguided, as Mr. Weiner’s affirmative claims against
Ms. Warren were properly in front of this Court prior to the nonsuit being filed. But, regardless,
Mr. Weiner had every right – and did – initiate cross and counter claims. Even if considered a
new lawsuit, the Counter and Cross-Petition is validly before this Court and Mr. Weiner has
properly and diligently sought to serve Daniel, in compliance with the Texas Rule of Civil
Procedure.
27.      On May 4, 2015, Mr. Weiner filed a Plea in Abatement and, subject thereto, Original
Answer in Cause No. 2015-19320.
III.
ARGUMENT & AUTHORITY
28.      Daniel’s Plea to the Jurisdiction is his last ditch effort to have his case tried in the District
Court, instead of this Court where he originally filed his claims against his father, Mr. Weiner.
29.      Daniel’s nonsuit nullifies the controversy by and between Daniel and Mr. Weiner; it does
not affect any pending claims for relief made by Mr. Weiner. In re Bennett, 
960 S.W. 35, 38
(Tex. 1997). A party has an absolute right to nonsuit their own claims, but not someone else’s
claims they are trying to avoid. Tex. Mut. Ins. Co. v. Ledbetter, 
251 S.W.3d 31, 37 (Tex. 2008)
(emphasis in original).
30.      So long as the plaintiff pleads enough facts to affirmatively demonstrate the trial court
6
092865/000001
376 - 1495732v1
has jurisdiction over the suit, a court’s jurisdiction attaches upon filing a lawsuit. TEX. PROP.
CODE § 115.001; TDCJ v. Miller, 
51 S.W.3d 583, 587 (Tex. 2001). And, unless the pleadings
demonstrate the absence of jurisdiction, the court will assume it has jurisdiction over the case.
Peek v. Equip. Serv., 
779 S.W.2d 802, 804 (Tex. 1989); Beacon Nat’l Ins. v. Montemayor, 
86
S.W.3d 260, 266 (Tex. App.—Austin 2002, no pet.).             In the event this Court “lost” its
jurisdiction upon Daniel’s nonsuit – which Mr. Weiner vehemently disagrees – this Court gained
jurisdiction upon the filing of Mr. Weiner’s Cross and Counter-Petition.
31.      Rule 162 of Texas Rule of Civil Procedure governs dismissal and nonsuits. Rule 162
provides that “[a]ny dismissal pursuant to this rule shall not prejudice the right of an adverse
party to be heard on a pending claim for affirmative relief.” TEX. R. CIV. P. 162. A claim for
affirmative relief is one “on which the claimant could recover compensation or relief even if the
plaintiff abandons his cause of action.” Univ. of Tex. Med. Branch at Galveston v. Est. of
Blackmon ex rel. Shultz, 
195 S.W.3d 98, 101 (Tex. 2006); BHP Petroleum Co., Inc. v. Millard,
800 S.W.2d 838, 841 (Tex.1990).
32.      Daniel falsely asserts that Mr. Weiner had no affirmative claims for relief pending at the
time of Daniel’s nonsuit. At the time of Daniel’s nonsuit, Mr. Weiner had the following cross-
claims, alleged in his Second Amended Cross-Claims, against Ms. Warren pending: (1)
contribution, (2) breaches of fiduciary duty, (3) removal of trustee, (4) tortious interference with
administration, and (5) attorneys’ fees and costs. See Exhibit F. These are claims for affirmative
relief under Rule 162 of the Texas Rules of Civil Procedure. TEX. R. CIV. P. 162; BHP Pet. Co.
v. Millard, 
800 S.W.2d 838, 840-41 (Tex. 1990) (defendant’s request for declaratory judgment if
it seeks resolution of continuing issues); Leon Springs Gas Co. v. Restaurant Equip. Leasing Co.,
961 S.W.2d 574, 578 (Tex. App—San Antonio 1997, no pet.); Ulloa v. Davila, 
860 S.W.2d 202,
7
092865/000001
376 - 1495732v1
204 (Tex. App.—San Antonio 1993, no writ) (counterclaim did more than resist plaintiff’s suit).
These are independent claims for affirmative relief, not merely derivative claims. In re Estate of
Kidd, 
812 S.W.2d 356, 359 (Tex. App.—Amarillo 1991, writ denied).
33.      Further, in his Counter and Cross-Petition, filed prior to this Court signing Daniel’s
request for dismissal, Mr. Weiner alleged the following claims: (1) construction of the Trust
Agreement, (2) breach of fiduciary duty, (3) reimbursement, (4) removal as trustee, (5) tortious
interference with administration, and (6) petition to modify trust and request for appointment of a
corporate trustee. See Exhibit G.
34.      Daniel relies upon Greenberg v. Brookshire and Ault v. Mulanex in support of his
position that this lawsuit should be dismissed, despite Mr. Weiner’s valid pending claims.
Greenberg v. Brookshire, 
640 S.W.2d 870 (Tex. 1982); Ault v. Mulanex, 
724 S.W.2d 824 (Tex.
App—Texarkana 1986, orig. proceeding). However, these cases are readily distinguishable.
Greenberg was a divorce action wherein the lower court conducted a hearing on an amended
pleading after the husband nonsuited his claims. Unlike the facts to the instant case, there were
only two parties to the lawsuit – a husband and a wife – and the wife filed a counterclaim against
her husband and requested a hearing on same after her husband filed a nonsuit. The lower court
conducted a hearing on the counterclaims, which the Texas Supreme Court held was in error, as
a plaintiff has an absolute, unqualified right to a nonsuit. 
Greenberg, 640 S.W.2d at 872. Ault
v. Mulanax is another divorce proceeding, specifically involving custody and child support issues
and; not relating, whatsoever, to the factual disputes at issue in the instant litigation. Ault v.
Mulanax, 724 S.W.2d at 828. Notwithstanding the factual differences, the Ault cases specifically
related to and involved the imposition of the Texas Family Code. 
Id. Furthermore, the legal
issues in Ault were jurisdictional – which court had dominant jurisdiction at the time the nonsuit
8
092865/000001
376 - 1495732v1
was filed. 
Id. at 828. Like in Greenberg, the Texarkana Court of Appeal’s ruling in Ault is not
instructive to this Court, as the factual and legal matters at issue in Ault are grossly different and
irrelevant to the case at hand.
35.      Regardless of the gamesmanship of Daniel and his mother, Ms. Warren, and their
persistent litigious acts, Daniel’s nonsuit does not summarily dismiss the affirmative claims
brought by Mr. Weiner against Ms. Warren, which were filed prior to the nonsuit; Daniel cannot
nonsuit Mr. Weiner’s claims against Ms. Warren. Tex. Mut. Ins. 
Co., 251 S.W.3d at 37.
V.
CONCLUSION
36.      Mr. Weiner’s Second Amended Cross-Claims were properly on file prior to Daniel’s
Nonsuit. And, subsequent to Daniel’s nonsuit, but prior to the entry of dismissal, Mr. Weiner’s
Cross and Counter-Petition was filed.
37.      While Daniel’s nonsuit effectively eliminates the affirmative claims he had against Mr.
Weiner, it does nothing with respect to the claims alleged by Mr. Weiner against Ms. Warren.
This Court has jurisdiction over this case and the remaining claims between Mr. Weiner and Ms.
Warren.
38.      Accordingly, it would be improper to dismiss this case, in its entirety, because of the
remaining claims by Mr. Weiner against Ms. Warren.
WHEREFORE, Andy Weiner respectfully requests that this Court, after oral hearing,
deny the Plea to the Jurisdiction filed by Daniel Warren f/k/a Daniel Steven Weiner, and for such
other and further relief, either at law or in equity, to which he may be justly entitled.
9
092865/000001
376 - 1495732v1
Respectfully submitted,
CRAIN, CATON & JAMES,
A PROFESSIONAL CORPORATION
By: /s/ Kathleen Tanner Beduze
SARAH PATEL PACHECO
(TBA # 00788164)
spacheco@craincaton.com
KATHLEEN TANNER BEDUZE
(TBA # 24052205)
kbeduze@craincaton.com
1401 McKinney, 17th Floor
Houston, Texas 77010
(713) 658-2323
(713) 658-1921 (Facsimile)
Attorneys for Andy Weiner
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been forwarded to:
Carol A. Cantrell                       Thomas R. Conner
Cantrell & Cantrell, PLLC               Conner & Lindamood, P.C.
3700 Buffalo Speedway, Suite 520        1221 Lamar, Suite 1010
Houston, Texas 77098                    Houston, Texas 77010
Facsimile: (713) 333-0550               Facsimile: (713) 654-8115
by e-file, facsimile and/or certified mail, return receipt requested, on the 12th day of May, 2015.
/s/ Kathleen Tanner Beduze
KATHLEEN TANNER BEDUZE
10
092865/000001
376 - 1495732v1
PROBATE COURT 4
No.    4 2 55 7 6
INRE:                                         §              IN THE PROBATE                   CO~RT
§                                        :r          v!     Iii
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DANIEL STEPHEN WEINER                         §                          --o
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1996TRUST                                    HARRISCOUNT.j.~AA~
§                                                                  ()
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ORIGINAL PETITION FOR TERMINATION OF TRUs'I{f.' i'"
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TO THE HONORABLE JUDGE OF SAID COURT:
1996 TRUST (the "Trust"), Petitioner herein, and files this Original Petition for Termination of
Trust, respectfully showing the Comt as follows:
PARTIES
l. Petitioner is an individual acting as co, trustee of the Trust. The sih1s of administration of
the Trust is maintained in Houston, Han·is County, Texas. Petitioner brings this action in
her capacity as co-h11stee of the Tmst pursuant to Texas Trust Code § 111.004(7). A true
and correct copy of the trust agreement is attached hereto as "Exhibit A" and is
incmporated for all purposes.
2. Andy I. Weiner is an individual acting as co-tmstee of the Tmst. Andy I. Weiner is
joined as a Respondent herein because he has an interest in this Trust under Texas Trust
Code § 111.004(7) and is a necessary party pursuant to Texas Trust Code §
115.0ll(b)(4). Andy I. Weiner cunently resides at 1200 Post Oak Blvd., Apartment 907,
Houston, Texas 77056.
3. Daniel S. Weiner, ("Primary Beneficiary") has an interest in this proceeding pursuant to
Texas Trust Code § 111.004(7) and is joined as Respondent herein because he is
cunently eligible, or potentially eligible to receive distributions of income and principal
EXHIBIT
exhibitsticker.com
TAB G
fi·om the Trust.   Pursuant to Texas Tmst Code § 115.011(2) Daniel S. Weiner is a
necessary party because he is the p1imary beneficiary named in the Tmst. Daniel S.
Weiner was bom on March II, 1996 and he currently resides at 1226 Mnirfield Place,
Houston, Harris County, Texas 77055. Petitioner requests to appear as next of fi'iend on
behalf of Daniel S. Weiner. Daniel S. Weiner is a minor, and Petitioner is his mother. In
the divorce decree, attached as "Exhibit B," entered into by Katheline F. Wan·en and
Andy I, Weiner in Cause Number 2011-01040 in the Distlict CoUit of the 309'h Judicial
Dishict in Harris County, Texas, Petitioner was awarded the exclusive right to represent
her minor children in legal actions and to make decisions of substantial legal significance
on behalf of her minor children. Texas Tmst Code§ 115.013(c)(3) permits a parent to
represent her child as guardian ad litem or next of fi·iend if there is no conflict of interest
and no guardian of the estate or guardian ad litem has been appointed.
JURISDICTION
4. This Court has jurisdiction to grant the relief requested in this petition pursuant to Texas
Tmst Code§ 115.001(d)(l) and Texas Probate Code§ 4G.
VENUE
5. Venue of this proceeding is proper in tllis Court pursuant to Tex.as Tmst Code §
115.002(b-2) and Texas Probate Code§ 8.
FACTS
6. The Twst is an inter vivos trust created under Internal Revenue Code § 2503( c) by
Katheline F. Wan·en and Andy I. Weiner by agreement dated March 20, 1996 for the
benefit of their son, the Primary Beneficiary.
2
7. At the present time, the only pennissible beneficiary of the Trust is the Primary
Beneficiary. The Trust is authorized under Section A-I to make distributions to the
Primary Beneficiary as follows:
During the tenn of the trust, the trustees may distribute as much or
all of the Trust estate as, in the trustees' discretion, is in the
Primary Beneficiary's best interests.
8. Pursuant to Section A-2 of the Trust, the Plimary Beneficiary may withdraw all or part of
the Tn1st estate within 60 days after becoming age 21, and may thereby terminate the
trust as to the part withdrawn.      If the Primaty Beneficiary does not exercise his
withdrawal right, the T!ust continues 1mtil the Primary Beneficiary becomes age 30.
9. Section A-2 of the Tmst provides that in the event the Primary Beneficiary should die
before the Trust tenninates, then all assets remaining in the T1ust shall be held or
distributed by the T1ustee for the benefit of those in favor of whom the Primary
Beneficiary exercises a power of appointment, or otherwise in the following order: (I) to
the Primary Beneficiary's descendants, (2) if none of the descendants are then Jiving, to
the hustors' descendants, (3) if none of the trusters' descendants are then living, to the
trustors' heirs.
I 0. Section C-1 T1ust agreement provides that any distribution made to a beneficiary of the
Trust may be made to a custodian for a minor beneficiary under the Uniform Gifts to
Minors Act.
II. The trust had marketable securities and cash in the approximate value of $113,000 as of
August 31, 2013.
3
12. The initial co-trustees of the Trust were Katherine A. Warren and Andy I. Weiner. Both
of the initial co-hustees of the Trust remain the current co-trustees, and no other co-
trustees have been appointed. In the event that Andy I. Weiner and Katherine F. Warren
cease to act as tmstee, Bayle Weiner Drubel, Andy I. Weiner's sister, is appointed
successor trustee under Section D-l(a) of the Tmst.
13. The co-hustees of the Tn.1st are the parents of the Primary Beneficiary. Although the co-
hustees were manied at the time the Trust was created, they were granted a divorce on
March 29, 2012. From the time that the div01'ce was finalized, the co-trustees have been
unable to agree on proper administration of the Trust.
14. Pursuant to the divorce decree attached as "Exhibit B," the Court ruled that the Trust
should be administered according to its te1ms. Tltis requixes the co-trustees to act jointly,
which has proved detrimental to the best interests of the Primary Beneficiary and
contrary to the purposes ofthe Trust.
15. Texas Trust Code § 112.054(a)(3) provides that on the petition of a trustee, a Comt may
order that the trustee be changed or that the Tmst be terminated if modification of
administrative, non-dispositive terms of the tmst is necessary or appropriate to prevent
waste or avoid impairment ofthe Tmst's administration.
16. Texas Trust Code§ 112.054(a)(2) provides that on the petition of a trustee, a Court may
order that the tmstee be changed or that the Tmst be tenninated if, because of
circumstances not known to or anticipated by the hustors, termination or modification of
the Tmst will further the purposes oft he Trust.
17. Petitioner claims that the inability of the co-llustees to agree on the appropriate
administration of the Trust assets has impaired the Tn1st's administration. The purposes
4
of the Tmst, to provide for the Primary Beneficiary, cannot be fulfilled if the co-tmstees
cannot agree regarding what actions constitute the "best interests" of the Primary
Beneficiary. Additionally, the cunent circumstances, i.e. the divorce of the co-tmstees,
was not known to or anticipated by the tmstors. Tetmination or modification of the Trust
is necessary due to the disharmony between the Tmst's co-trustees which prevents the
co-trustees from administering the Tmst in the best interests of the Primary Beneficiary.
RELIEF REQUESTED
l. Petitioner requests that the Court order that the Tmst be tetminated and that the Trust
estate be distributed to the Unifmm Transfers to Minors Act account created for the
benefit of the DanielS. Weiner, Fidelity Account ending in #6843, over which Katherine
F. Wanen was awarded sole and exclusive control in the divorce decree attached as
"Exhibit B"; that continued administration of the Trust would defeat or substantially
impair the accomplislm1ent of the Tmst; that such circumstances were not known to or
anticipated by the tmstms upon creation of the Tmst; that termination of the Tmst will
further the purposes of the Trust; that the Petitioner be awarded Court costs and expenses
and legal fees fi·om the Trust estate; that the remaining assets of the Tmst, after payment
of Court costs and expenses and legal fees, be distributed to the Fidelity Account ending
in #6843; and that the Court enter such other orders as may be approp1iate to provide for
the delivery of all Tmst assets fi·om Katherine F. Warren and Andy I. Weiner to the
Fidelity Account ending in #6843.
2. Petitioner altematively requests that the Comi order that the co-trustees be changed; that
the Court appoint an independent corporate tmstce; that replacing the co-trustees with an
independent corporate tmstee will ftniher the purposes of the Trust; that modification of
5
the Trust is necessary or appropriate to prevent waste or avoid impairment of the Ttust's
administration; that the Petitioner be awarded Court costs and expenses and legal fees
from the Trust estate; that the remaining assets of the Trust, after payment of Court costs
and expenses and legal fees, be distributed to an independent corporate trustee; and that
the Court enter such other orders as may be appropriate to provide for the delivery of all
Trust assets fi·om Katherine F. Wall'en and Andy I. Weiner to the independent corporate
trustee.
3. After the hearing on this petition, if the Comt tenninates the Trust or appoints a corporate
trustee in place of the current co-trustees, Katherine F. Warren will submit a final
accounting that describes all of the actions she has taken as co-tntstee of the Tmst. In
that event, Petitioner asks the Court to review the final accounting, and to enter an order
approving the accounting and discharging Katherine F. Wanen from any liabilities in
connection with her actions as co-trustee of this Trust, including the termination.
4. Petitioner brings this action for the puqJose of preserving and protecting the interests of
the Trust and its Primary Beneficiary. The relief sought herein is necessary to enable the
Tntst to fulfill its purposes as created by the tmstors. Accordingly, Petitioner is entitled
to recover reasonable attorney's fees and coutt costs fi·om the Trust pursuant to Texas
Trust Code§ 114.064. If any of the other parties to this proceeding retain counsel to
represent their interests in this cause, including counsel appointed by this Comt, the
Court should detetmine whether all or any portion of the attorney's fees and court costs
incuJTed by these parties should be paid by the Trust.
6
PRAYER
WHEREFORE PREMISES CONSIDERED, Petitioner prays that the Com! grant the
requested relief. Petitioner further prays for such other and further relief to which Petitioner is
justly entitled.
Respectfully submitted,
Cantrell & Cowan, PLLC
By:    !JJ~
Carol A. Cantrell, Attomey for Petitioner
Texas Bar No.: 24043592
Meredith N. Mciver
Texas Bar No.: 24078974
3700 Buffalo Speedway, Suite 520
Houston, TX 77098
Phone: 713-333-0555
Fax: 713-333-0550
7
CERTIFICATE OF SERVICE
I certif'y that on September 30, 2013, I served a tme and correct copy of the foregoing
instrument by cetiified mail, return receipt requested to the following:
Andy I. Weiner
1200 Post Oak Blvd.,
Apartment 907,
Houston, Texas 77056
Carol
llA£``11.
~antrell
No. _ _ _ _ _ __
INRE:                                         §               IN THE PROBATE COURT
§
§               NO. _____________
DANffiL STEPHEN WEINER                         §
1996TRUST                                      §               HARRIS COUNTY, TEXAS
FINAL JUDGMENT
On the ___ day of _ _ _ _ _ _ _ _ _, 2013, came on to be heard the Original
Petition for Termination of Trust in the above-entitled and numbered cause by Katherine F.
Warren, co-trustee of the DANIEL STEPHEN WEINER 1996 TRUST. Petitioner appeared
through her duly authorized representative and attomey of record and mmounced ready for trial.
Respondent Andy I. Weiner appeared by and through his duly authorized representative and
attomey of record and allllounced ready for trial. No jury having been demanded by any patiy,
all issues of fact and law were submitted to the Court for decision.
Having reviewed the pleadings and other papers on file in this cause; and having
considered the evidence presented at trial and the arguments of counsel, the Court finds as
follows:
1. This Court has jurisdiction and venue of this action.
2. All necessary patiies to this action are properly before the Court and have been duly
served with citation in the mallller required by law.
3. The DANIEL STEPHEN WEINER 1996 TRUST (hereinafter referred to as the "Trust")
is an inter vivos trust created by Katherine F. Warren and Andy I. Weiner by agreement
dated March 20, 1996 for the benefit of their son, Daniel S. Weiner (hereinafter referred
to as the "Primary Beneficiary").
4. The current co-trustees of the Trust are Katherine F. Warren and Andy I. Weiner.
5. Texas Trust Code§ 112.054(a)(3) provides that on the petition of a trustee or beneficiary,
a Comt may order that the tmstee be changed or that the Trust be te1minated if
modification of administrative, non-dispositive terms of the trust is necessary or
appropriate to prevent waste or avoid impairment of the Tmst's administration.
6. Texas Tmst Code§ 112.054(a)(2) provides that on the petition of a trustee or beneficiary,
a Comt may order that the tmstee be changed or that the Trust be tem1inated if,· because
of circumstances not known to or anticipated by the trustors, termination or modification
of the Tmst will fmther the purposes of the Tmst.
7. Petitioner has requested termination of the Trust contingent on the Court's finding that:
(a) the inability of the co-hustees to agree on the appropriate administration of the Trust
assets has impaired the Trust's administration; and (b) due to the divorce of the co-
trustees, a circumstance not known to or anticipated by the trustors when they created the
Trust, termination will further the purposes of the Trust, which is to provide for the best
interests of the Primary Beneficiary.
8. Petitioners have alternatively requested that the co-trustees be replaced by an independent
cmporate trustee, if available, contingent on the Court's finding that: (a) the inability of
the co-trustees to agree on the appropriate administration of the Trust assets has impaired
the Trust's administration; and (b) due to the divorce of the co-trustees, a circumstance
not known to or anticipated by the trustors when they created the Tmst, modification of
the Tmst will further the p\ll'poses of the Trust, which is to provide for the best interests
of the Primary Beneficiary.
2
9. The co-trustees have tendered an accounting of their actions as co-trustee of the Tn1st
(the "Final Accounting").     The Final Accounting reflects that the co-trustees have
administered the Tmst in accordance with the requirements of Texas law.
10. The Final Accounting should be approved in all respects, and the co-trustees should be
released and discharged from any and all liabilities arising out of or in any way related to
the administration of the Trust or the Trust termination.
11. The Tmst should be tenninated and the remaining Trust estate, after payment of all Comt
costs and expenses and legal fees should be distributed to the Unifonn Transfers to
Minors Act account created for the benefit of the Daniel S. Weiner, Fidelity Acco made to the individuals who would have inherited
the person's personal property if the person had died intestate at
the time the distribution is to be made, domiciled in Texas and not
married, under the laws of Texas in force on the effective date of
this trust agreement, with the shares of taking determined by those
laws. However, both trusters and any spouse of a trustor shall be
deemed to have died prior to the time that any such distribution is
to be made. A distribution to "trusters' heirs" shall be made to
the heirs of Andy I. Weiner.
F-4. Internal Revenue code.    "Internal, Revenue code" means the
Internal Revenue Code of 1986, as amended, or corresponding
provisions of any subsequent federal tax laws.
-7-
F-5. other Terms, The use of any gender includes the other
genders, and the use of either the singular or the plural includes
the other.
F-6. Spendthrift Provision. No beneficiary shall have the power
to anticipate, encumber, or transfer his interest in any trust
estate in any manner. No part of any trust estate shall be liable
for or charged with any debts, contracts, liabilities or torts of
a beneficiary or subject to seizure or other process by any
creditor of a beneficiary.    Nothing in this paragraph shall be
construed to limit the otherwise valid exercise of a power of
appointment or right of withdrawal given by this trust agreement.
F-7. Texas Law Applies. The situs of the trusts established under
this trust agreement is Texas.     Wherever possible, the laws of
Texas shall apply to the construction, administration and validity
of each trust.
F-8, Maximum Term of Trusts. No trust shall continue for a period
longer than 21 years after the death of the last to die of trusters
and all of trusters' descendants who are living on the effective
date of this trust agreement. Any trust still in force at the end
of such period shall terminate, and the trust estate shall be
distributed to the beneficiary for whom the trust was established.
F-9.   Powers of Appointment Exercisable by Beneficiaries.      In
exercising a power of appointment given to a beneficiary by this
trust agreement, the beneficiary may appoint the property subject
to the power outright to the appointee, in trust, or to a custodian
for the appointee under the Uniform Gifts to Minors Act of any
state. If the beneficiary appoints to a custodian, he may select
the custodian. If the beneficiary appoints in trust, he may select
the trustee or trustees, may establish such administrative terms
for the trust as he deems appropriate, and may impose lawful
spendthrift restrictions. He may give the trustee discretionary
powers over the income and principal, and may create a trust that
has several permissible distributees. He may create life interests
or other limited interests in some appointees with future interests
in favor of other appointees, may appoint different types of
interests among the appointees, and may create new powers of
appointment in a trustee or trustees or in any appointee. He may
impose lawful conditions on an appointment and,, in general, may
appoint to or among the appointees in any lawful manner.
In determining whether, in what manner and to what extent a
testamentary power of appointment has been exercised by a
beneficiary, the trustee may act in reliance upon a court order
admitting an instrument to probate as the beneficiary's last will
or an order finding that the beneficiary died intestate, Unless
~ri thin six months after the beneficiary 1 s death the trustee has
actual notice of the existence of proceedings to probate a will of
the beneficiary, the trustee shall assume that the beneficiary died
intestate. The foregoing provisions are intended to expedite the
prompt and efficient administration of the trust and to protect the
trustee from any action taken or distribution made in accordance
with these prov1sions. Nothing in this paragraph shall limit or
qualify any power of appointment given by this trust agreement or
any right which an appointee or taker in default of appointment may
have against any person receiving a distribution from the trustee
irrespective of the place of probate or of the time of discovery of
a will exercising the power or any other action taken in the
beneficiary's estate.
G.   ACCEPTANCE BY TRUSTEE
By signing this trust agreement, the trustee (i) accepts these
trusts and all of the rights, powers and duties attached to the
office of trustee as provided herein, (ii) agrees to serve as
trustee of the Daniel Steven Weiner 1996 Trust and of any
Contingent Trusts which may be established under this trust
agreement, (iii) acknowledges receipt of the property described in
Attachment A, and (iv) agrees to hold and administer each trust
estate in accordance with the terms of this trust agreement.
This trust agreement is executed effective as of the 20th day
of March, 1996.
Andy I. Weiner, Trustor and
Trustee
Katherine Friedman Weiner,
Trustor and Trustee
-9-
ATTACID1ENT A: INITIAL CONTRIBUTIONS
TO THE DANIEL STEVEN WEINER l996 TRUST
$1.00
Andy I, Weiner, Trustor and
Trustee
Kather~ne Fr~edman    We1ner,
Trustor and Trustee
3669:palnso\01 57136
-10-
Exhibit B
NO. 2011·01 040
IN THE MATTER OF                                §                 IN THE DISTRICT COURT
THE MARRIAGE OF                                 §                                  y5   jl.:s'
§
1~§ E gosrH JUDICIAL DISTRicT s:f~
KATHERINE F. WEINER
AND
ANDY I. WEINER                          F 01c   s oanlel
lot Clerk                    ·                   rt:C
AND IN THE INTEREST OF             MAl2 9 2012
DAVID A. WEINER, DANIELS.              §
WEINER AND MICHAEL H. Tim•: --,ll§
.,.,
ii    this Court.
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0      Weiner- Agreed Final Decree of Divorce
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ihe agreements In this Final Decree of Divorce were reached In mediation
with Harry L. Tindall. This Final Decree of Divorce is stipulated to represent a
merger of a mediated settlement agreement between the parties. To the extent
there exist any differences between the mediated settlement agreement and this
Final Decree of Divorce, this Final Decree of Divorce shall control In all instances.
Divorce
IT IS ORDERED AND DECREED that Katherine F. Weiner, Petitioner, and
Andy I. Weiner, Respondent, are divorced and that the marriage between them Is
dissolved on the ground of insupportabillty.
Children of the Marriage
The Court finds that Petitioner and Respondent are the parents of the
following children:
Name:                           David A. Weiner
Sex:                            Male
Birth date:                     June 14, 1994
Home state:                     Texas
Social Security number:         xxx-xx-x861
Driver's license number
and issuing state:              xxxxx273, Texas
Name:                           DanielS. Weiner
Sex:                            Male
Birth date:                     March 11, 1996
Home state:                     Texas
Social Security number:         xxx-xx-x039
Driver's license number
and issuing state:              xxxxx996Texas
Weiner- Agreed Final Decree of Divorce
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Name:                           Michael H. Weiner
Sex:                            Male
Birth date:                     November 1, 1999
Home state:                     Texas
Social Security number:         xxx-xx-x735
Driver's license number
and Issuing state:              N/A
The Court finds no other children of the marriage are expected.
Parenting Plan
The Court finds that the provisions In this decree relating to the rights and
duties of the parties with relation to the children, possession of and access to the
children, child support, and optimizing the development of a close and continuing
relationship between each party and the children constitute the parties' agreed
parenting plan.
Conservatorship
The Court, having considered the circumstances of the parents and of the
children, finds that the following orders are in the best interest of the children.
IT IS ORDERED that Katherine F. Weiner and Andy I. Weiner are appointed
Joint Managing Conservators of the following children: David A. Weiner, Daniel
...
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1i     s. Weiner and Michael H. Weiner.
J!"              IT IS ORDERED that, at all times, Katherine F. Weiner, as a parent joint
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.."'~   managing conservator, shall have the following rights:
~              1.   the right to receive information from any other conservator of the
~       children concerning the health, education, and welfare of the children:
i
8       Weiner· Agreed Final Decree of Divorce                                   Page4
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2.    the right to confer with the other parent to the extent possible befo~e
making a decision concerning the health, education, and welfare of the children;
3.     the right of access to medical, dental, psychological, and educational
records of the children;
4.      the right to consult with a physician, dentist, or psychologist of the
children;
5.    the right to consult with school officials concerning the children's
welfare and educational status, Including school activities;
6.     the right to attend school activities;
7.     the right to be designated on the children's records as a person to be
notified In case of an emergency;
8.    the right to consent to medical, dental, and surgical treatment during
an emergency involving an immediate danger to the health and safety of the
children; and
9.    the right to manage the estates of the children to the extent the
estates have been created by the parent or the parent's family.
IT IS ORDERED that, at all times, Andy I. Weiner, as a parent joint
managing conservator, shall have the following rights:
1.   the right to receive information from any other conservator of the
children concerning the health, education, and welfare of the children;
2.    the right to confer with the other parent to the extent possible before
making a decision concerning the health, education, and welfare of the children;
3.     the right of access to medical, dental, psychological, and educational
records of the children;
li              4.      the right to consult with a physician, dentist, or psychologist of the
'E        children;
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(:)       Weiner· Agreed Final Decree of Divorce                                  Page5     vY
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5.    the right to consult with school officials concerning the children's
welfare and educational status, including school activities;
6.     the right to attend school activities;
7.     the right to be designated on the children's records as a person to be
notified In case of an emergency;
B.    the right to consent to medical, dental, and surgical treatment during
an emergency involving an immediate danger to the health and safety of the
children; and
9.    the right to manage the estates of the children to the extent the
estates have been created by the parent or the parent's family.
IT IS ORDERED that, at all times, Katherine F. Weiner and Andy I. Weiner,
as parent joint managing conservators, shall each have the following dulles:
1.     the duty to inform the other conservator of the children In a timely
manner of significant information concerning the health, education, and welfare of
the children; and
2.    the duty to inform the other conservator of the children if the
conservator resides with for at least thirty days, marries, or intends to marry a
person who the conservator knows Is registered as a sex offender under chapter
62 of the Code of Criminal Procedure or Is currently charged with an offense for
which on conviction the person would be required to register under that chapter.
IT IS ORDERED that this Information shall be tendered In the form of a notice
made as soon as practicable, but not later than the fortieth day after the date the
conservator of the children begins to reside with the person or on the tenth day
after the date the marriage occurs, as appropriate. IT IS ORDERED that the
notice must include a description of the offense that is the basis of the person's
requirement to register as a sex offender or of the offense with which the person is
charged.      WARNING:        A CONSERVATOR COMMITS AN OFFENSE
PUNISHABLE AS A CLASS C MISDEMEANOR IF THE CONSERVATOR FAILS
TO PROVIDE THIS NOTICE.
IT IS ORDERED that, during her periods of possession, Katherine F.
Weiner- Agreed Final Decree of Divorce
Weiner, as parent joint managing conservator, shall have the following rights and
duties:
1.    the duty of care, control, protection, and reasonable discipline of the
children;
2.    the duty to support the children, including providing the children with
clothing, food, shelter, and medical and dental care not involving an invasive
procedure;
3.    the right to consent for the children to medical and dental care not
involving an invasive procedure; and
4.      the right to direct the moral and religious training of the children.
IT IS ORDERED that, during his periods of possession, Andy I. Weiner, as
parent joint managing conservator, shall have the following rights and duties:
1.      the duty of care, control, protection, and reasonable discipline of the
children;
2.    the duty to support the children, Including providing the children with
clothing, food, shelter, and medical and dental care not involving an invasive
procedure;
3,    the right to consent for the children to medical and dental care not
Involving an Invasive procedure; and
4.      the right to direct the moral and religious training of the children.
IT IS ORDERED that Katherine F. Weiner, as a parent joint managing
conservator, shall have the following rights and duty:
1.    the exclusive right to establish the primary residence and legal
domicile of the children in Harris County, Texas or a county that is contiguous to
Harris County, Texas, subject to the provisions hereinafter.
2.      the exclusive right to consent to medical, dental, and surgical
Weiner· Agreed Final Decree of Divorce                                      Page?
treatment involving Invasive procedures;
3.     the exclusive right to consent to psychiatric and psychological
treatment of the children;
4.     the exclusive right to receive and give receipt for periodic payments
for the support of the children and to hold or disburse these funds for the benefit of
the children;
5.     the exclusive right to represent the children In legal action and to
make other decisions of substantial legal significance concerning the children;
6.     the exclusive right to consent to marriage and to enlistment in the
armed forces of the United States;
7.   the right, subject to the agreement of the other parent conservator, to
make decisions concerning the children's education;
B.   except as provided by section 264.0111 of the Texas Family Code,
the independent right to the services and earnings of the children;
9.    except when a guardian of the children's estates or a guardian or
attorney ad litem has been appointed for the children, the independent right to act
as an agent of the children In relation to the children's estates if the children's
action is required by a state, the United States, or a foreign government; and
10. the exclusive duty to manage the estates of the children to the extent
the estates have been created by community property or the joint property of the
parent.
IT IS ORDERED that Andy I. Weiner, as a parent joint managing
conservator, shall have the right, subject to the agreement of the other parent
conservator, to make decisions concerning the children's education, and In this
regard, the Court finds that Andy I. Weiner has agreed for each child to remain at
the Kinkaid School through each child's graduation from such School, and that
there are other more specific provisions herein further delineating the obligation of
Weiner- Agreed Final Decree of Divorce
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Andy I. Weiner to pay for the Kinkaid School for the children.
The Court finds that, in accordance with section 153.001 of the Texas
Family Code, it is the public policy of Texas to assure that children will have
frequent and continuing contact with parents who have shown the ability to act in
the best interest of the child, to provide a safe, stable, and nonviolent environment
for the child, and to encourage parents to share in the rights and duties of raising
their child after the parents have separated or dissolved their marriage. IT IS
ORDERED that, so long as the principal residence of Andy I Weiner Is in either
Harris County, Texas or a county that is contiguous to Harris County, Texas, the
primary residence of the children shall be in Harris County, Texas or a county that
is contiguous to Harris County, Texas, and the parties shall not remove the
children from such designated area for the purpose of changing the primary
residence of the children until modified by further order of the court of continuing
jurisdiction or by written agreement signed by the parties and filed with the court.
IT IS ORDERED that the following custodial accounts now held by the
parties for the parties' children are placed under the sole and exclusive control of
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1.   Fidelity UTMA Acct Ending in #4270; and
2.   Fidelity UTMA Acct Ending in #6843.
Unless these documents have been previously executed, Andy I. Weiner Is
Weiner - Agreed Final Decree of Divorce                                Page 9
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ORDERED to appear in the law offices of Randall B. Wilhite at 4265 San Felipe
Street, Suite 1400, Houston, Texas 77027, at 2:00p.m. on March 30, 2012, and to
execute, have acknowledged, and deliver to Katherine F. Weiner all documents
necessary to effectuate Katherine F. Weiner's sole and exclusive control of the
accounts.
IT IS ORDERED that the following children's trusts are held in irrevocable
trusts, which shall continue as written, and that each party will take any and all
necessary steps to provide full co-trustee ownership and control of each such
account including the placing of such accounts in a deposit and withdrawal
agreement requiring both co-trustees to disburse funds; also known as an "and"
account:
1.    Fideli1y Trust Acct Ending in #8634 (David);
2.    Fidelity Trust Acct Ending in #3958 (Daniel); and
3.    Fidelity Trust Acct Ending In #1942 (Michael).
Possession and Access
1.    Modified Possession Order
The Court finds that the parties have entered into a Mediated
Settlement Agreement providing for a non-expanded, non-standard
possession order as more specifically herein provided.
IT IS ORDERED that each conservator shall comply with all terms
and conditions of this Modified Possession Order. IT IS ORDERED that
this Modified Possession Order is effective immediately and applies to all
periods of possession occurring on and after the date the Court signs this
Weiner- Agreed Final Decree or Divorce                         Page 10
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Modified Possession Order. IT IS, THEREFORE, ORDERED:
(a)     Definitions
1.     In this Modified Possession Order "school" means the
primary or secondary school in which the child Is enrolled or, if the
child is not enrolled In a primary or secondary school, the public
school district in which the child primarily resides.
2.    In this Modified Possession Order "child" Includes each
child, whether one or more, who is a subject of this suit while that cllild
Is under the age of eighteen years and not otherwise emancipated.
(b)    Mutual Agreement or Specified Terms for Possession
IT IS ORDERED that the conservators shall have possession of
the child at times mutually agreed to in advance by the parties, and, in
the absence of mutual agreement, it is ORDERED that the
conservators shall have possession of the child under the specified
terms set out in this Modified Possession Order.
©      Except as otherwise expressly provided in this Modified
Possession Order, Andy I. Weiner shall have the right to possession
of the child as follows:
1.     Weekends -
On weekends, beginning at 6:00p.m., on the first, third,
and fifth Friday of each month and ending at 6:00 p.m. on the
following Sunday, provided that upon 14 days' advance written notice
of an out-of-town trip, Andy I. Weiner may pick up at 4 p.m. one time
every 60 days.
2.    Thursdays - On Thursday of each week during the
regular school term, beginning at 4:00 p.m. and ending at 8:00p.m.
3.     Spring Vacation in Even-Numbered Years - In
even-numbered years, beginning at 5:00 p.m. o'n the day the child is
dismissed from school for the school's spring vacation and ending at
5:00p.m. on the day before school resumes after that vacation.
Weiner- Agreed Final Decree of Divorce                        Page 11
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4.     Extended Summer Possession by Andy I. Weiner-
With Written Notice by April 1 - On or before April 1•t of each
year, Andy I. Weiner shall designate one period of 14 consecutive
days (which may be exercised In 2 one week periods of possession,
separated by no less than 14 days), beginning no earlier than the day
after the child's school is dismissed for the summer vacation and
ending no later than 7 days before school resumes for the next school
year, during which he shall have his summer periods of possession
with the children. These periods of possession shall begin and end at
6:00p.m. on each applicable day.
Notwithstanding the Thursday periods of possession during the
regular school term and the weekend periods of possession
ORD.ERED for Andy I. Weiner, It Is expressly ORDERED that
Katherine F. Weiner shall have a superior right of possession of the
child as follows:
1.     Spring Vacation in Odd-Numbered Years - In
odd-numbered years, beginning at 5:00 p.m. on the day the child Is
dismissed from school for the school's spring vacation and ending at
6:00 p.m. on the day before school resumes after that vacation.
2.    Summer Weekend Possession by Katherine F. Weiner-
On or before April 15th of each year, Katherine F. Weiner shall
designate 14 consecutive days, or at her election, two 7 day periods
beginning no earlier than the day after the child's school Is dismissed
for the summer vacation and ending no later than 7 days before
school resumes for the next school year, during which she will have
her summer perlod(s) of possession with the children, provided the
dates do not conflict with Father's Day weekend or the summer
periods designated by Andy I. Weiner. These periods of possession
shall begin and end at6:00 p.m. on each applicable day.
(d)    Holidays
Notwithstanding the weekend and Thursday periods of
possession of Andy I. Weiner, Katherine F. Weiner and Andy I.
Weiner shall have the right to possession of the child as follows:
Weiner· Agreed Final Decree of Divorce
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1.     Christmas Holidays In Even-Numbered Years - In
even-numbered years, Andy I. Weiner shall have the right to
possession of the child beginning at 6:00 p.m. on the day the child is
dismissed from school for the Christmas school vacation and ending
at noon on December 28, and Katherine F. Weiner shall have the right
to possession of the child beginning at noon on December 28 and
ending at 6:00 p.m. on the day before school resumes after that
Christmas school vacation.                            ·
2.     Christmas Holidays in Odd-Numbered Years - In
odd-numbered years, Katherine F. Weiner shal.l have the right to
possession of the child beginning at 6:00 p.m. on the day the child is
dismissed from school for the Christmas school vacation and ending
at noon on December 28, and Andy I. Weiner shall have the right to
possession of the child beginning at noon on December 28 and
ending at 6:00 p.m. on the day before school resumes after that
Christmas school vacation.
3.    Thanksgiving In Odd-Numbered Years                      In
odd-numbered years, Andy I. Weiner shall have the right to
possession of the child beginning at 6:00 p.m. on the day the child is
dismissed from school for the Thanksgiving holiday and ending at
6:00p.m. on the Sunday following Thanksgiving.
4.    Thanksgiving In Even-Numbered Years                     In
even-numbered years, Katherine F. Weiner shall have the right to
possession of the child beginning at 6:00 p.m. on the day the child Is
dismissed from school for the Thanksgiving hoiiday and ending at
6:00p.m. on the Sunday following Thanksgiving.
5.    Father's Day • Andy I. Weiner shall have the right to
possession of the child each year, beginning at 6:00 p.m. on the
Friday preceding Father's Day and ending at 6:00 p.m. on Father's
Day, provided that if Andy I. Weiner is not otherwise entitled under this
Modified Possession Order to present possession of the child, he
shall pick up the child from Katherine F. Weiner's residence and
return the child to that same place.
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possession of the child each year, beginning at 6:00 p.m. on the
Friday preceding Mother's Day and ending at 6:00 p.m. on Mother's
Day, provided that if Katherine F. Weiner Is not otherwise entitled
under this Modified Possession Order to present possession of the
child, she shall pick up the child from Andy I. Weiner's residence and
return the child to that same place.
(e)    Undeslgnated Periods of Possession
Katherine F. Weiner shall have the right of possession of the
child at all other times not specifically designated In this Modified
Possession Order for Andy I. Weiner.
(f)     General Terms and Conditions
Except as otherwise expressly provided In this Modified
Possession Order, the terms and conditions of possession of the child
are as follows:
1.    Surrender of Child by Katherine F. Weiner- Katherine F.
Weiner Is ORDERED to surrender the child to Andy I. Weiner at the
beginning of each period of Andy I. Weiner's possession at the
residence of Katherine F. Weiner.
2.    Return of Child by Andy I. Weiner - Andy I. Weiner is
ORDERED to return the child to the residence of Katherine F. Weiner
at the end of each period of possession.
3.     Surrender of Child by Andy I. Weiner - Andy I. Weiner is
ORDERED to surrender the child to Katherine F. Weiner, if the child is
In Andy I. Weiner's possession or subject to Andy I. Weiner's control,
at the beginning of each period of Katherine F. Weiner's exclusive
periods of possession, at the place designated in this Modified
Possession Order.
4.    Return of Child by Katherine F. Weiner- Katherine F.
Weiner is ORDERED to return the child to Andy I. Weiner, If Andy I.
Weiner is entitled to possession of the child, at the end of each of
Katherine F. Weiner's exclusive periods of possession, at the place
designated in this Modified Possession Order.
Weiner- Agreed Final Decree of Divorce
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5.    Notwithstanding any other prov1s1on herein to the
contrary, any child with a driver's license shall be permitted to drive
himself to and from each period of possession and during each period
of possession; however, any child without a driver's license (which at
this lime includes Daniel Weiner and Michael Weiner) Is ORDERED
to ride only with Andy I. Weiner.
6.     Personal Effects - Each conservator Is ORDERED to
return with the child the personal effects that the child brought at the
beginning of the period of possession.
7.    Designation of Competent Adult- Each conservator may
designate any competent adult to pick up and return the child, as
applicable. IT. IS ORDERED that a conservator or a designated
competent adult be present when the child is picked up or returned.
8.    Inability to Exercise Possession - Each conservator is
ORDERED to give notice to the person in possession of the child on
each occasion that the conservator will be unable to exercise that
conservator's right of possession for any specified period.
9.    Written Notice- Written notice shall be made to the other
parent via e-mail correspondence to the other parent's e-mail
address, including all notices from one parent to the other of any
changes in a party's e-mail address. Each party is ORDERED to
provide any change in the e-mail address designated by each such
party as the one to be used for notification by the other party within 7
days of a change thereof.
This concludes the Modified Possession Order.
2.    Provisions for Jewish Religious Holidays
In addition to the holiday periods of possession set forth In the
Modified Possession Order, Andy I. Weiner and Katherine F. Weiner shall
share the Jewish holidays as set forth below:
a.     Rosh      Hashanah        -   Even-Numbered   Years.     In   all
Weiner- Agreed Final Decree of Divorce
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even-numbered years Andy I. Weiner shall have possession of the children
for a period beginning at 5:00 p.m. on the night before the first day of Rosh
Hashanah and ending at 9:00 p.m. on the same day; Katherine F. Weiner
shall have possession of the children from 10:00 a.m. until 8:00 p.m. on the
first day of Rosh Hashanah.
b.      Rosh Hashanah- Odd-Numbered Years. In all odd-numbered
years Katherine F. Weiner shall have possession of the children for a period
beginning at 5:00 p.m. on the night before the first day of Rosh Hashanah
and ending at 9:00 p.m. on the same day; Andy I. Weiner shall have
possession of the children from 10:00 a.m. until 8;00 p.m. on the first day of
Rosh Hashanah.
c.     Yom Kippur - Odd-Numbered Years - In all odd-numbered
years, Katherine F. Weiner shall have possession of the children for a period
beginning at 5:00 p.m. on the night before the first day of Yom Kippur and
ending at 9;00 p.m. on the same day; Andy I. Weiner shall have possession
of the children from 10:00 a.m. until8:00 p.m. on the first day of Yom Kippur.
d.      Yom Kippur - Even-Numbered Years - In all even-numbered
years, Andy I. Weiner shall have possession of the children for a period
beginning at 5:00 p.m. on the night before the first day of Yom Kippur and
ending at 9:00 p.m. on the same day; Katherine F. Weiner shall have
Weiner- Agreed Final Decree of Divorce                    Page 16
possession of the children from 10:00 a.m. until 8:00p.m. on the first day of
Yom Kippur.
e.     Passover - Even-Numbered Years - In all even-numbered
years, Andy I. Weiner shall have possession of the children for a period
beginning at 5:00 p.m. on the night before the first full day of Passover and
ending at 9:00 p.m. on the same day.
f.      Passover- Odd-Numbered Years- In all odd-numbered years,
Katherine F. Weiner shall have possession of the children for a period
beginning at 5:00 p.m. on the night before the first full day of Passover and
ending at 9:00 p.m. on the same day.
3.      Duration
The periods of possession ordered above apply to each child the
subject of this suit while that child Is under the age of eighteen years and not
otherwise emancipated.
4.      Noninterference with Possession
IT IS ORDERED that neither conservator shall take possession .of the
children during the other conservator's period of possession unless there is
a prior written agreement signed by both conservators or In case of an
emergency.
5.     Termination of Orders
Weiner- Agreed Final Decree of Divorce                     Page 17
The provisions of this decree relating to conservatorship, possession,
or access terminate on the remarriage of Katherine F. Weiner to Andy I.
Weiner unless a nonparent or agency has been appointed conservator of
the children under chapter 153 of the Texas Family Code.
Child Support
IT IS ORDERED that Andy I. Weiner is obligated to pay and shall pay to
Katherine F. Weiner child support of two thousand two hundred fifty dollars
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($2,250) per month, with the first payment being due and payable on           MMeh    1,
2012, and a like payment being due and payable on the 1st day of each month
thereafter until the first month following the date of the earliest occurrence of one of
the events specified below:
1.'    any child reaches the age of eighteen years or graduates from high
school, whichever occurs later, subject to the provisions for support beyond the
age of eighteen years set out below;
2.      any child marries;
3.      any child dies;
4.      the parent-child relationship Is terminated based on genetic testing
l    that excludes the obligor as the child's genetic father;
5.     the child enlists in the armed forces of the United States and begins
~    active service as defined by section 101 of title 10 of the United States Code; or
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6.     '1nY child's disabilities are otherwise removed for general purposes.
Thereafter, Andy I. Weiner is ORDERED to pay to Katherine F. Weiner child
support of one thousand eight hundred seventy-five dollars ($1,875) per month,
due and payable on the 1st day of the first month immediately following the date of
the earliest occurrence of one of the events specified above for another child and a
like sum of one thousand eight hundred seventy-five dollars ($1 ,875) due and
payable on the 1st day of each month thereafter until the next occurrence of one of
the events specified above for another child.
Thereafter, Andy I. Weiner Is ORDERED to pay to Katherine F. Weiner child
support of one thousand five hundred dollars ($1 ,500) per month, due and payable
on the 1st day of the first month Immediately following the date of the earliest
occurrence of one of the events specified above for another child and a like sum of
one thousand five hundred dollars ($1 ,500) due and payable on the 1st day of
each month thereafter until the next occurrence of one of the events specified
above for another child.
If the child is eighteen years of age and has not graduated from high school,
"
~         IT IS ORDERED that Andy I. Weiner's obligation to pay child support to Katherine
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l          F. Weiner shall not terminate but shall continue for as long as the child Is enrolled-
1.    under chapter 25 of the Texas Education Code In an accredited
ii        secondary school in a program leading toward a high school diploma or under
l~
s
~
'g
"'u'E
Weiner- Agreed Final Decree of Divorce                      Page 19
;.
section 130.008 of the Education Code In courses for joint high school and junior
college credit and is complying with the minimum attendance requirements of
subchapter C of chapter 25 of the Education Code or
2.      on a full-time basis in a private secondary school in a program leading
toward a high school diploma and Is complying with the minimum attendance
requirements Imposed by that school.
Withholding from Earnings
IT IS ORDERED that any employer of Andy I. Weiner shall be ordered to
withhold from earnings for child support from the disposable earnings of Andy I.
Weiner for the support of David A. Weiner, Daniel S. Weiner and Michael H.
Weiner.
IT IS FURTHER ORDERED that all amounts withheld from the disposable
earnings of Andy I. Weiner by the employer and paid in accordance with the order
to that employer shall constitute a credit against the child support obligation.
Payment of the full amount of child support ordered paid by this decree through the
means of withholding from earnings shall discharge the child support obligation.
If the amount withheld from earnings and credited against the child support
obligation Is less than 1oo percent of the amount ordered to be paid by this decree,
the balance due remains an obligation of Andy I. Weiner, and It Is hereby
ORDERED that Andy I. Weiner pay the balance due directly to the state
Weiner- Agreed Final Decree of Divorce                      Page 20
disbursement unit specified below.
On this date the Court authorized the issuance of an Order/Notice to
Withhold Income for Child Support.
Payment
IT IS ORDERED that all payments shall be made through the state
disbursement unit at Texas Child Support Disbursement Unit, P.O. Box 659791,
San Antonio, Texas 78265·9791, and thereafter promptly remitted to Katherine F.
Weiner for the support of the children. IT IS ORDERED that each party shall pay,
when due, all fees charged to that party by the state disbursement unit and any
other agency statutorily authorized to charge a fee.
Change of Employment
IT IS FURTHER ORDERED that Andy I. Weiner shall notify this Court and
Katherine F. Weiner by U.S. certified mail, return receipt requested, of any change
of address and of any termination of employment. This notice shall be given no
later than seven days after the change of address or the termination of
employment. This notice or a subsequent notice shall also provide the current
address of Andy I. Weiner and the name and address of his current employer,
whenever that information becomes available.
Clerk's Duties
IT IS ORDERED that, on the request of a prosecuting attorney, the title IV·D
Weiner· Agreed Final Decree of Divorce                   Page 21
agency, the friend of the Court, a domestic relations office, Katherine F. Weiner,
Andy I. Weiner, or an attorney representing Katherine F. Weiner or Andy I. Weiner,
the clerk of this Court shall cause a certified copy of the Order/Notice to Withhold
Income for Child Support to be delivered to any employer.
Suspension of Withholding from Earnings
The Court finds that good cause exists that no order to withhold from
earnings for child support should be delivered to any employer of Andy I. Weiner
as long as no delinquency or other violation of this child support order occurs and
as long as the Office of the Attorney General Child Support Division is not
providing services to Katherine F. Weiner. For the purpose of this provision, a
delinquency has occurred if Andy I. Weiner has been In arrears for an amount due
for more than thirty days or the amount of the arrearages equals or is greater than
the amount due for a one-month period. If a delinquency or other violation occurs
or If the Office of the Attorney General Child Support Division begins providing
services to Katherine F. Weiner, the clerk shall deliver the order to withhold
earnings as provided above.
ACCORDINGLY, IT IS ORDERED that, as long as no delinquency or other
violation of this child support order occurs and as long as the Office of the Attorney
General Child Support Division is not providing services to Katherine F. Weiner, all
payments shall be made through the state disbursement unit and thereafter
Weiner- Agreed Final Decree of Divorce                     Page 22
promptly remitted to Katherine F. Weiner for the support of the children. If a
delinquency or other violation occurs or If the Office of the Attorney General Child
Support Division begins providing services to Katherine F. Weiner, all payments
shall be made in accordance with the order to withhold earnings as provided
above.
Kinkaid School Tuition
IT IS ORDERED that Andy I. Weiner shall pay, as child support, through
graduation from high school, each child's tuition, required fees, required books,
lunches at school and other fees associated with the children's attendance at the
Kinkaid School, as billed directly by the school to Andy I. Weiner.
Health Care
1.      IT IS ORDERED that Katherine F. Weiner and Andy I. Weiner shall
each provide medical support for each child as set out In this order as additional
child support for as long as the Court may order Katherine F. Weiner and Andy I.
Weiner to provide support for the child under sections 154.001 and 154.002 of the
Texas Family Code. Beginning on the day Katherine F. Weiner and Andy I.
~
'<>    Weiner's actual or potential obligation to support a child under sections 154.001
~1
~
l      and 154.002 of the Family Code terminates, IT IS ORDERED that Katherine F.
'
~
~      Weiner and Andy I. Weiner are discharged from the obligations set forth in this
00
~
on
li
,£>
medical support order with respect to that child, except for any failure by a parent
~
~
~
8       Weiner- Agreed Final Decree of Divorce                    Page23
1l
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~
••
to fully comply with those obligations before that date.
2.    Definitions -
"Health Insurance" means insurance coverage that provides basic
health-care services,           Including   usual physician     services,   office   visits,
hospitalization, and laboratory, X-ray, and emergency services, that may be
provided through a health maintenance organization or other private or public
organization, other than medical assistance under chapter 32 of the Texas Human
Resources Code.
"Reasonable cost" means the total cost of health insurance coverage for all
children for which Andy I. Weiner is responsible under a medical support order that
does not exceed 9 percent of Andy I. Weiner 's annual resources, as described by
section 154.062(b) of the Texas Family Code.
"Reasonable and necessary health-care expenses not paid by Insurance
and incurred by or on behalf of a child" include, without limitation, any copayments
for office visits or prescription drugs, the yearly deductible, If any, and medical,
surgical, prescription drug, mental health-care services, dental, eye care,
ophthalmological, and orthodontic charges.         These reasonable and necessary
health-care expenses do not Include expenses for travel to and from the
health-care provider or for nonprescription medication.
"Furnish" means:
Weiner- Agreed Final Decree of Divorce                         Page 24
'.
a.      to hand deliver the document by a person eighteen years of age
or older either to the recipient or to a person who is eighteen
years of age or older and permanently resides with the
recipient;
b.     to deliver the document to the recipient by certified mail, return
receipt requested, to the recipient's last known mailing or
residence address; or
c.      to deliver the document to the recipient at the recipient's last
known mailing or residence address using any person or entity
whose principal business is that of a courier or deliverer of
papers or documents either within or outside the United States.
3.    Findings on Health Insurance Availability- Having considered the
cost, accessibility, and quality of health Insurance coverage available to the
parties, the Court finds:
Health insurance Is available or is in effect for the children through Andy I.
Weiner's employment or membership in a union, trade association, or other
organization at a reasonable cost.
IT IS FURTHER FOUND that the following orders regarding health-care
coverage are in the best interest of the children.
4.    Provision of Health-Care Coverage -
Weiner- Agreed Final Decree of Divorce                       Page 25
\
'
As additional child support, through four (4) months past high school
graduation for each child and for so long as child support is payable for a child,
Andy I. Weiner Is ORDERED to provide health Insurance for each such child with a
deductible of no more than $1 ,000.00 per year, per child, and if it is higher, as child
support, Andy I. Weiner Is ORDERED to pay 100% of all deductible amounts to a
point where such deductible amount reaches that level.           For example, if the
deductible for the children is $7,500, Andy I. Weiner shall pay 100% of the fist
$6,500 in uninsured health care expenses of the children.
Beginning on the first day of the first month following the rendition of the
divorce, and pursuant to section 154. 183© of the Texas Family Code, IT IS
ORDERED that the reasonable and necessary uninsured medical expenses of the
children be paid as follows:
a.   Andy I. Weiner shall be responsible for payment of 70% of each
child's deductible;
b.   after the deductible has been met, Katherine F. Weiner shall pay for
30% and Andy I. Weiner shall pay for 70% of all uninsured health care expenses
for each child's health care not covered by the children's health Insurance policy.
c.   Notwllhstanding the foregoing, any uninsured health care expenses
not applied toward the deductible shall be paid 30% by Katherine F. Weiner and
70% by Andy I. Weiner.
Weiner· Agreed Final Decree of Divorce                      Page26   ~
'.
d.     Unless approved in advance by both parents, any party Incurring out
of network expenses, except in the case Qi a medical emergency, shall pay 100%
of such expense.
Andy I. Weiner is ORDERED to continue to maintain health insurance for
each child who is the subject of this suit that covers basic health-care services,
including usual physician services, office visits, hospitalization, and laboratory,
X-ray, and emergency services.
Andy I. Weiner is ORDERED to maintain such health insurance in full force
and effect on each child who is the subject of this suit as long as child support is
payable for that child.         Andy I. Weiner is ORDERED to convert any group
insurance to individual coverage or obtain other health Insurance for each child
within fifteen days of termination of his employment or other disqualification from
the group insurance. Andy I. Weiner is ORDERED to exercise any conversion
options or acquisition of new health insurance in such a manner that the resulting
insurance equals or exceeds that in effect immediately before the change.
Andy I. Weiner Is ORDERED to furnish Katharine F. Weiner a true and
correct copy of the health insurance policy or certification and a schedule of
benefits within 10 days of the signing of this order. Andy I. Weiner is ORDERED
to furnish Katherine F. Weiner the insurance cards and any other forms necessary
for use of the insurance within 10 days of the signing of this order. Andy I. Weiner
Weiner- Agreed Final Decree of Divorce                    Page 27
•
is ORDERED to provide, within three days of receipt by him, to Katherine F.
Weiner any insurance checks, other payments, or explanations of benefits relating
to any medical expenses for the children that Katherine F. Weiner paid or Incurred.
Pursuant to section 1504.051 of the Texas Insurance Code, IT IS
ORDERED that if Andy I. Weiner is eligible for dependent health coverage but fails
to apply to obtain coverage for the children, the insurer shall enroll the children on
application of Katherine F. Weiner or others as authorized by law.
The party who incurs a health·care expense on behalf of a child is
ORDERED to submit to the other party ail forms, receipts, bills, statements, and
explanations of benefits reflecting the uninsured portion of the health·care
expenses within thirty days after he or she receives them. The non incurring party
is ORDERED to pay his or her percentage of the uninsured portion of the
health·care expenses either by paying the health·care provider directly or by
reimbursing the Incurring party for any advance payment exceeding the incurring
party's percentage of the uninsured portion of the health·care expenses within
thirty days after the nonlncurrlng party receives the forms, receipts, bills,
statements, and explanations of benefits.
These provisions apply to all unreimbursed health·care expenses of any
child who Is the subject of this suit that are Incurred while child support Is payable
for that child.
Weiner. Agreed Final Decree of Divorce                     Page28
·''
5.    Secondary Coverage- IT IS ORDERED that if a party provides
secondary health insurance coverage for the children, both parties shall cooperate
fully with regard to the handling and filing of claims with the Insurance carrier
providing the coverage in order to maximize the benefits available to the children
and to ensure that the party who pays for health-care expenses for the children is
reimbursed for the payment from both carriers to the fullest extent possible.
6.    Compliance with Insurance Company Requirements - Each party is
ORDERED to conform to all requirements imposed by the terms and conditions of
the policy of health Insurance covering the children in order to assure maximum
reimbursement or direct payment by the insurance company of the Incurred
health-care expense, Including but not limited to requirements for advance notice
to any carrier, second opinions, and the like. Each party Is ORDERED to attempt
to use "preferred providers," or services within the health maintenance
organization, if applicable; however, this provision shall not apply if emergency
care is required. Disallowance of the bill by a health Insurer shall not excuse the
obligation of either party to make payment; however, if a bill is disallowed or the
benefit reduced because of the failure of a party to follow insurance procedures or
requirements, IT IS ORDERED that the party failing to follow the insurance
procedures or requirements shall be wholly responsible for the increased portion
Weiner- Agreed Final Decree of Divorce                   Page29
/<•        I
of that bill.
IT IS FURTHER ORDERED that no surgical procedure, other than In an
emergency or one covered by insurance, shall be performed on the child unless
the parent consenting to surgery has first consulted with at least two medical
doctors, both of whom state an opinion that the surgery Is medically necessary. IT.
IS FURTHER ORDERED that a parent who falls to obtain the required medical
opinions before consent to surgery on the child shall be wholly responsible for all
medical and hospital expenses Incurred In connection therewith and not covered
by insurance.
7.      Claims- Except as provided in this paragraph, the party who is not
carrying the health Insurance policy covering the children Is ORDERED to furnish
to the party carrying the policy, within thirty days of receiving them, any and all
forms, receipts, bills, and statements reflecting the health-care expenses the party
not carrying the policy Incurs on behalf of the children. In accordance with section
1204.251 and 1504.055(a) of the Texas Insurance Code, IT IS ORDERED that the
party who is not carrying the health insurance policy covering the children, at that
party's option , may file any claims for health-care expenses directly with the
insurance carrier with and from whom coverage is provided for the benefit of the
children and receive payments directly from the insurance company. Further, for
the sole purpose of section 1204.251 of the Texas Insurance Code, Katherine F.
Weiner- Agreed Final Decree of Divorce                    Page 30
1',      ... '
Weiner is designated the managing conservator or possessory conservator of the
children.
The party who is carrying the health insurance policy covering the children Is
ORDERED to submit all forms required by the insurance company for payment or
reimbursement of health-care expenses incurred by either party on behalf of a
child to the insurance carrier within fifteen days of that party's receiving any form,
receipt, bill, or statement reflecting the expenses.
B.     Constructive Trust for Payments Received- IT IS ORDERED that any
insurance payments received by a party from the health insurance carrier as
·reimbursement for health-care expenses Incurred by or on behalf of a child shall
belong to the party who paid those expenses. IT IS FURTHER ORDERED that
the party receiving the insurance payments is designated a constructive trustee to
receive any insurance checks or payments for health-care expenses paid by the
other party, and the party carrying the policy shall endorse and forward the checks
or payments, along with any explanation of benefits received, to the other party
within three days of receiving them.
9.    WARNING- A PARENT ORDERED TO PROVIDE HEALTH
INSURANCE OR TO PAY THE OTHER PARENT ADDITIONAL CHILD
SUPPORT FOR THE COST OF HEALTH INSURANCE WHO FAILS TO DO SO
IS LIABLE FOR NECESSARY MEDICAL EXPENSES OF THE CHILDREN,
Weiner- Agreed Final Decree of Divorce                        Page 31
WITHOUT REGARD TO WHETHER THE EXPENSES WOULD HAVE BEEN
PAID IF HEALTH INSURANCE HAD BEEN PROVIDED, AND FOR THE COST
OF HEALTH INSURANCE PREMIUMS OR CONTRIBUTIONS, IF ANY, PAID ON
BEHALF OF THE CHILDREN.
Miscellaneous Child Support Provisions
Support as Obligation of Estate
IT IS ORDERED that the provisions for child support In this decree shall be
an obligation of the estate of Andy I. Weiner and shall not terminate on the death of
Andy I. Weiner.        Payments received for the benefit of the children, including
payments from the Social Security Administration, Department of Veterans Affairs
or other governmental agency or life Insurance proceeds, annuity payments, trust
distributions, or retirement survivor benefits, shall be a credit against this
obligation. Any remaining balance of the child support is an obligation of Andy I.
Weiner's estate.
Termination of Orders on Remarriage of Parties but Not on Death of Obligee
The provisions of this decree relating to current child support terminate on
"
.....
:;       the remarriage of Katherine F. Weiner to Andy I. Weiner unless a nonparent or
M
l.,.,'   agency has been appointed conservator of the children under chapter 153 of the
"'~      Texas Family Code. An obligation to pay child support under this decree does not
"',,.,
~
ii      terminate on the death of Katherine F. Weiner but continues as an obligation to
'S
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il
§
0
8         Weiner- Agreed Final Decree of Divorce                    Page 32
]
"'8'€
I I      ,,J..
David A. Weiner, Daniel S. Weiner and Michael H. Weiner.
Information Regarding Parties
The information required for each party by section 105.006(a) of the Texas
Family Code is as follows:
Name:                                       Katherine F. Weiner
Social Security number:       xxx-xx-x324
Driver's license number:                              xxxxx616
Issuing     state:
Texas
Current residence address:    8719 Stablecrest, Houston, TX 77024
Mailing address:                   8719 Stablecrest, Houston, TX 77024
Home telephone number:        832-725-4340
Name of employer:             N/A
Weiner- Agreed Final Decree of Divorce                      Page 33
Address of employment:          N/A
Work telephone number:          N/A
Name:                                          Andy I. Weiner
Social Security number:          xxx-xx-x888
Driver's license number                                  xxxxx486
Issuing     state:
Texas
Current residence address:       1200 Post Oak Blvd., Apt. 907, Houston, TX
77056
Mailing address:                             1200 Post Oak Blvd., Apt. 907,
Houston, TX 77056
Home telephone number:           832 816 4666
Name of employer:                Weiner Development
Address of employment:           520 North Post Oak Blvd., Houston, Texas
Work telephone number:           (713) 623-0188
EACH PERSON WHO IS A PARTY TO THIS ORDER IS ORDERED TO NOTIFY
EACH OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY OF
ANY CHANGE IN THE PARTY'S CURRENT RESIDENCE ADDRESS, MAILING
ADDRESS, HOME TELEPHONE NUMBER, NAME OF EMPLOYER, ADDRESS
OF EMPLOYMENT, DRIVER'S LICENSE NUMBER, AND WORK TELEPHONE
NUMBER. THE PARTY IS ORDERED TO GIVE NOTICE OF AN INTENDED
CHANGE IN ANY OF THE REQUIRED INFORMATION TO EACH OTHER
PARTY, THE COURT, AND THE STATE CASE REGISTRY ON OR BEFORE
THE 60TH DAY BEFORE THE INTENDED CHANGE. IF THE PARTY DOES
NOT KNOW OR COULD NOT HAVE KNOWN OF THE CHANGE IN SUFFICIENT
TIME TO PROVIDE 60-DAY NOTICE, THE PARTY IS ORDERED TO GIVE
NOTICE OF THE CHANGE ON OR BEFORE THE FIFTH DAY AFTER THE
Weiner- Agreed Final Decree of Divorce                     Page34
I
DATE THAT THE PARTY KNOWS OF THE CHANGE.
THE DUTY TO FURNISH THIS INFORMATION TO EACH OTHER PARTY, THE
COURT, AND THE STATE CASE REGISTRY CONTINUES AS LONG AS ANY
PERSON, BY VIRTUE OF THIS ORDER, IS UNDER AN OBLIGATION TO PAY
CHILD SUPPORT OR ENTITLED TO POSSESSION OF OR ACCESS TO A
CHILD.
FAILURE BY A PARTY TO OBEY THE ORDER OF rHIS COURT TO PROVIDE
EACH OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY WITH
THE CHANGE IN THE REQUIRED INFORMATION MAY RESULT IN FURTHER
LITIGATION TO ENFORCE THE ORDER, INCLUDING CONTEMPT OF COURT.
A FINDING OF CONTEMPT MAY BE PUNISHED BY CONFINEMENT IN JAIL
FOR UP TO SIX MONTHS, A FINE OF UP TO $500 FOR EACH VIOLATION,
AND A MONEY JUDGMENT FOR PAYMENT OF ATTORNEY'S FEES AND
COURT COSTS.
Notice shall be given to the other party by delivering a copy of the notice to the
party by e-mail correspondence to the party's e-mail address. Notice shall be given
to the Court by delivering a copy of the notice either in person to the clerk of this
Court or by registered or certified mail addressed to the clerk at 1115 Congress,
Houston, Texas 77002. Notice shall be given to the state case registry by mailing a
copy of the notice to State Case Registry, Contract Services Section, MC046S,
Weiner- Agreed Final Decree of Divorce                    Page 35
'
P.O. Box 12017, Austin, Texas 78711-2017.
NOTICE TO ANY PEACE OFFICER OF THE STATE OF TEXAS: YOU MAY
USE REASONABLE EFFORTS TO ENFORCE THE TERMS OP CHILD
CUSTODY SPECIFIED IN THIS ORDER. A PEACE OFFICER WHO RELIES
ON THE TERMS OF A COURT ORDER AND THE OFFICER'S AGENCY ARE
ENTITLED TO THE APPLICABLE IMMUNITY AGAINST ANY CLAIM, CIVIL OR
OTHERWISE,           REGARDING           THE   OFFICER'S   GOOD      FAITH   ACTS
PERFORMED IN THE SCOPE OF THE OFFICER'S DUTIES IN ENFORCING
THE TERMS OF THE ORDER THAT RELATE TO CHILD CUSTODY. ANY
PERSON WHO KNOWINGLY PRESENTS FOR ENFORCEMENT AN ORDER
THAT IS INVALID OR NO LONGER IN EFFECT COMMITS AN OFFENSE THAT
MAY BE PUNISHABLE BY CONFINEMENT IN JAIL FOR AS LONG AS TWO
YEARS AND A FINE OF AS MUCH AS $10,000.
WARNINGS TO PARTIES: FAILURE TO OBEY A COURT ORDER FOR CHILD
SUPPORT OR FOR POSSESSION OF OR ACCESS TO A CHILD MAY RESULT
IN    FURTHER LITIGATION TO ENFORCE THE                      ORDER,    INCLUDING
CONTEMPT OF COURT. A FINDING OF CONTEMPT MAY BE PUNISHED BY
CONFINEMENT IN JAIL FOR UP TO SIX MONTHS, A FINE OF UP TO $500 FOR
EACH VIOLATION, AND A MONEY JUDGMENT FOR PAYMENT OF
ATTORNEY'S FEES AND COURT COSTS.
Weiner- Agreed Final Decree of Divorce                     Page 36
'-1      ,~,I
FAILURE OF A PARTY TO MAKE A CHILD SUPPORT PAYMENT TO THE
PLACE AND IN THE MANNER REQUIRED BY A COURT ORDER MAY RESULT
IN THE PARTY'S NOT RECEIVING CREDIT FOR MAKING THE PAYMENT.
FAILURE OF A PARTY TO PAY CHILD SUPPORT DOES NOT JUSTIFY
DENYING THAT PARTY COURT-ORDERED POSSESSION OF OR ACCESS
TO A CHILD.         REFUSAL BY A PARTY TO ALLOW POSSESSION OF OR
ACCESS        TO     A    CHILD         DOES   NOT   JUSTIFY   FAILURE   TO   PAY
COURT-ORDERED CHILD SUPPORT TO THAT PARTY.
Change of Petitioner's Name
IT IS ORDERED AND DECREED that Katherine F. Weiner's name is
changed to Katherine Rose Warren.
Court Costs
IT IS ORDERED AND DECREED that costs of court are to be borne by the
party who incurred them.
Resolution of Temporary Orders
IT IS ORDERED AND DECREED that Petitioner and Respondent are
discharged from all further liabilities and obligations imposed by the temporary
order of this Court rendered on August 24, 2011, except as otherwise stated herein
with regard to provisions for sale of the home.
Discharge from Discovery Retention Requirement
Weiner· Agreed Final Decree of Divorce                      Page 37
....
IT IS ORDERED AND DECREED that the parties and their respective
attorneys are discharged from the requirement of keeping and storing the
documents produced In this case in accordance with rule 191.4(d) of the Texas
Rules of Civil Procedure.
Decree Acknowledgment
Petitioner, Katherine F. Weiner, and Respondent, Andy I. Weiner, each
acknowledge that before signing this Final Decree of Divorce they have read this
Final Decree of Divorce fully and completely, have had the opportunity to ask any
questions regarding the same, and fully understand that the contents of this Final
Decree of Divorce constitute a full and complete resolution of this case. Petitioner
and Respondent acknowledge that they have voluntarily affixed their signatures to
this Final Decree of Divorce, believing this agreement to be a just and right division
of the marital debt and assets, and state that they have not signed by virtue of any
coercion, any duress, or any agreement other than those specifically set forth in
this Final Decree of Divorce.
Indemnification
Each party represents and warrants that he or she has not incurred any
outstanding debt, obligation, or other liability on which the other party is or may be
liable, other than those described in this decree. Each party agrees and IT IS
ORDERED that If any claim, action, or proceeding Is hereafter Initiated seeking to
Weiner- Agreed Final Decree of Divorce                         Page 38
hold the party not assuming a debt, an obligation, a liability, an act, or an omission
of the other party liable for such debt, obligation, liability, act or omission of the
other party, that other party will, at his or her sole expense, defend the party not
assuming the debt, obligation, liability, act, or omission of the other party against
any such claim or demand, whether or not well founded, and will indemnify the
party not assuming the debt, obligation, liability, act, or omission of the other party
and hold him or her harmless from all damages resulting from the claim or
demand.
Damages, as used in this provision, includes any reasonable loss, cost, expense,
penalty, and other damage, including without limitation attorney's fees and other
costs and expenses reasonably and necessarily incurred in enforcing this
indemnity.
IT IS ORDERED that the Indemnifying party will reimburse the indemnified
party, on demand, for any payment made by the indemnified party at any lime after
the entry of the divorce decree to satisfy any judgment of any court of competent
jurisdiction or in accordance with a bona fide compromise or settlement of claims,
demands, or actions for any damages to which this indemnity relates.
The parties agree and IT IS ORDERED that each party will give the other
party prompt written notice of any litigation threatened or instituted against either
party that might constitute the basis of a claim for Indemnity under this decree.
Weiner- Agreed Final Decree of Divorce                      Page 39
Clarifying Orders
Without affecting the finality of this Final Decree of Divorce, this Court
expressly reserves the right to make orders necessary to clarify and enforce this
decree.
Relief Not Granted
IT IS ORDERED AND DECREED that all relief requested In this case and
not expressly granted Is denied. This is a final judgment, for which let execution
and all writs and processes necessary to enforce this judgment Issue.        This
Weiner- Agreed Final Decree of Divorce                  Page40
i
..    '   ........
APPROVED AS TO FORM ONLY:
FULLENWEIDER WILHITE
4265 San Felipe Street
Suite 1400
Houston, Texas 77027
Tel: (713) 624-4100
Fax: (713) 624-4141    1
By``    Ra1ldaiiB:W(hlt6
Attorney for Katherine F. Weiner
State Bar No. 21476400
JENKINS KAMIN, LLP
Two Greenway Plaza, Suite 600
Houston, Texas 77046
713-600-5500 Telephone
713-600-     Telefa
By:--:-----co``z.;_.L;~---
Joan . Jenkln"'<-__..-
Attorney for Andy I. Weiner
State Bar Number 10621900
APPROVED AND CONSENTED TO
AS TO BOTH FORM AND SUBSTANCE:
Weiner- Agreed Final Decree of Divorce      Page 41
No. ______________
INRE:                                           §            IN THE PROBATE COURT
§
§            NO. ______________
DAVID ABRAHAM WEINER                             §
1994TRUST                                        §            HARRIS COUNTY, TEXAS
AFFIDAVIT OF KATHERINE F. WARREN
Before me, the undersigned notary, on this day personally appeared KATHERINE F.
WARREN, the affiant, whose identity is known to me. After I administered an oath, affiant
testified as follows:
1. My name is Katherine F. Warren. I am over eighteen years of age, of sonnd mind, and
capable of making tllis affidavit. The facts stated in this affidavit are within my personal
knowledge and are true and correct.
2. On December 13, 1994, Andy I. Weiner and I created the DAVID ABRAHAM WEINER
1994 TRUST (the "Trust") for the benefit of our son, David W. Warren, formerly known
as David A. Weiner. Andy I. Weiner and I are the trustors and co-ttustees of the Trust.
3. The purpose of the Trust is to provide for the best interests of our son, David. A primary
purpose of the Trust is to fund his educational costs. I believe that it is in David's best
interest to receive a quality education.
4. David is enrolled as a freshman at Rice University in Houston, Texas.             He began
attending classes in August 2013.
5. Andy I. Weiner and I were granted a divorce on March 29, 2012. As part of the divorce
decree, the trust was to continue as provided under the tmst agreement. Under the trust
agreement, Andy I. Weiner and I are required to act jointly as co-trustees.
1
txh;hrf             ~
6. Although David is the primary beneficiary of the Trust, he applied for fmancial aid with
Rice University prior to the start of the Fall 2013 semester. David was denied financial
aid because of the Trust. The financial aid department of Rice University explained that
where students are the beneficiaries of trusts like the DAVID ABRAHAM WEINER
1994 TRUST, that the school assumes that the trust funds are intended for the payment of
college expenses.
7. David received a tuition bill from Rice University in July 2013. I wrote a check from the
Trust's Fidelity account for $20,000 or around August 1, 2013. The check was returned
to Rice University unpaid because Andy I. Weiner requested that Fidelity not honor the
check.
8. After the check was returned to Rice University unpaid, David received a letter from the
university advising him that his tuition payment was overdue. I requested that Fidelity
wire $20,000 to David, with which he paid his tuition. It took approximately six weeks
for the tuition payment to be credited to David's account with Rice University.
9. I believe that it is detrimental to the best interests of David for Andy I. Weiner and I to
continue acting as co-trustees of the Trust. Our disagreements regarding distributions of
David's behalf could seriously inhibit his ability to receive a wonderful education.
10. David is an intelligent adult and is capable of using the Trust assets for his best interests.
I believe that David has shown maturity beyond most other college students his age. It
would be in his best interests to be given the Trust assets for his college tuition, rather
than to face the uncertainty inherent in the current situation.
_ _ 2013.
Sworn to and subscribed before me by Katherine F. Warren on   CJ •3 0
ANGIE K BYRNES
My commission Expires
seplember 16. 2015
PI~OBATE COURT.4
No. 425,576
' .           r--'
INRE:                                         §              IN THE PROBA,rE'¢,ouRt,                           •)j
§                                                     :;,::        [<'
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§              N0.4                                                   r~,
DANIEL STEPHEN WEINER                         §                                    -:::-~   nt                      ",>
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1996TRUST                                     §              HARRIS COUNTY,'TEXAS                       ~              c-
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.,.,. '               ·(it\
FIRST AMENDED ORIGINAL PETITION FOR MODIFICATION OF TRUST                                        and 0
RESPONSE TO PLEA IN ABATEMENT AND PLEA TO THE JURISDICTION
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES Katherine F. Warren as next friend of Daniel S. Weiner, a mmor,
Petitioner herein, and files this First Amended Original Petition for Modification of Trust for the
DANIEL STEPHEN WEINER 1996 TRUST, a true and correct copy of which is attached hereto
as "Exhibit A" and is incorporated for all purposes. Petitioner respectfully shows the Court as
follows:
PARTIES
I. Katherine F. Warren appears as next fi'iend of Daniel S. Weiner pursuant to Rule 44 of
the Texas Rules of Civil Procedure and files this action on his behalf in his capacity as
beneficiary of the DANIEL STEPHEN WEINER 1996 TRUST ("Trust"). Daniel S.
Weiner, a minor, was born on March 11, 1996. He will be an adult on March II, 2014.
No legal guardian or attorney ad litem has been appointed for DanielS. Weiner.
2. Daniel S. Weiner ("Primary Beneficiary") has an interest in tltis proceeding under Texas
Trust Code § 111.004(7). He is also a necessary pmiy under Texas Trust Code §
115.011(2) because he is the primary beneficiary named in the Trust.
3. Katherine F. Warren has the exclusive right to represent Daniel S. Weiner in legal action
and to make decisions of substantial legal significance concerning him pursuant to the
EXHIBIT
exhibitsticker.com
I
TAB H
Agreed Final Decree of Divorce ("Divorce Decree"), Cause No. 2011-01040 in the
District Court of the 309'" Judicial District in Hanis County, Texas, which is attached as
"Exhibit B" and incorporated for all pmposes. Texas Trust Code§ 115.013(c)(3) petmits
a parent to represent her child as guardian ad litem or next friend if there is no conflict of
interest and no guardian of the estate or guardian ad litem has been appointed. Ms.
Wan·en's interests do not conflict with those of DanielS. Weiner.
4. Katherine F. Wanen is an individual acting as tmstee of the Tmst. Ms. WmTen is joined
as a Respondent herein because she has an interest in the proceeding under Texas Tmst
Code § 111.004(7) and is a necessary party pursuant to Texas Tmst Code §
115.011(b)(4).   She cmTently resides at 1226 Muirfield Place, Houston, Hanis County,
Texas 77055.
5. Andy I. Weiner is an individual acting as trustee of the Tmst. Mr. Weiner is joined as a
Respondent herein because he has an interest in this proceeding under Texas Tmst Code
§ 111.004(7) and is a necessary party pursuant to Texas Trust Code§ 115.011(b)(4). Mr.
Weiner currently resides at 1200 Post Oak Blvd., Apmiment 907, Houston, Texas 77056.
6. The situs of the Trust is Houston, Hanis County, Texas.
JURISDICTION
7. The subject matter of this dispute involves the management and modification of the Trust
estate of the DANIEL STEPHEN WEINER 1996 TRUST. This Court has jurisdiction
over this subject matter pursuant to Texas Trust Code§ 115.001(d)(1) and Texas Probate
Code§ 4G.
2
RESPONSE TO PLEA IN ABATEMENT
8. Respondent Andy I. Weiner filed a Plea in Abatement in this action alleging that he had
commenced an earlier suit on the same subject matter involving the same patties in the
3091h Judicial Disllict. In order to succeed on his Plea in Abatement, Mr. Weiner must
show that I) he commenced suit first, 2) the suit is still pending, 3) the same parties are
involved, and 4) the controversies are the same. In re Sims, 
88 S.W.3d 301, 303 (Tex.
App. - San Antonio 2002, Wiit granted).        The undisputed record shows that the Mr.
Weiner cannot meet the last two requirements. On their face, Mr. Weiner's pleadings
show that the parties are not the same in the District Comt and the Probate Court. Daniel
S. Weiner is not a party in the District Court action. Daniel S. Weiner would be a
necessary party to a suit involving the DANIEL STEPHEN WEINER 1996 TRUST
because he is a named beneficiary. Tex. Trust Code§ 115.01l(b)(2). A lack of necessary
parties deprives the first court of dominant jurisdiction. Mission Res. v. Garza Energy
Trust, 
268 S.W.3d 301, 328 (Tex. App. Corpus Christi 2005). A plaintiff who is not a
pmty to a plior suit is fi·ee to choose his forum. Wyatt v. Shaw Plumbing Co., 
760 S.W.2d
245, 248 (Tex. 1988). A defendant, however, is not at libetty to decline to do battle in the
forum chosen by the plaintiff. 
Id. Accordingly, Mr. Weiner's Plea in Abatement should
be denied.
9. Nor can Mr. Weiner show that he had a prior case involving the same subject matter
when Petitioner filed his case in the Probate Comt. Two controversies involve the same
subject matter when the issues presented in each case are "inherently intenelated" - i.e.
one controversy cannot be resolved without resolving the other. In re Puig, 
351 S.W.3d
301, 305 (Tex. 2011); 
Wyatt, 760 S.W.2d at 247. That is not the case here. The pleadings
3
on their face reveal that the subject matters in the two actions are wholly dissimilar. The
alienation issues can be resolved without modifying the Tmst and the Trust can be
modified without resolving the alienation issues.
10. The hemi of Mr. Weiner's Petition to Modify Parent-Child Relationship ("SAPCR" 1)
filed on August 14, 2013 is a claim of alienation from his children allegedly caused by
Katherine F. Wan·en, his ex-wife. See Suppotiing Affidavit to Exhibit A to Mr. Weiner's
Plea in Abatement. Mr. Weiner's SAPCR contained a litany of grievances and relief
requested in order to stop the alienation. Among them was a request for the exclusive
right to consent to the children's psychiattic and psychological treatment, to manage their
estates, 2 to represent them in legal action, and to exercise a fully expanded Standard
Possession Order. Mr. Weiner also requested temporary orders for psychological
evaluation of the whole family, the appointment of an Amicus Attorney, mandatory
alternative dispute resolution ("ADR"), access to the children's health care records, and
enforcement of the Divorce Decree's order that the Fidelity Trust accounts be changed to
"and" accounts. He also requested a temporary restraining order to prevent Ms. Wan·en
from withdrawing the children from school where they are presently enrolled and making
disparaging remarks about him in front of the children. And finally, he requested a
permanent injunction to prevent Ms. Wan·en from changing the names of the children.
There was no mention of Trust management or modification and hence no inherent
intenelation of the initial subject matter of the two suits. In re 
Puig, 351 S.W.3d at 305;
Wyatt, 760 S.W.2d at 247.
1
Suit Affecting the Parent-Child Relationship ("SAPCR") means a suit filed in which the appointment of a
managing conservator or a possessory conservator, access to or support of a child, or establishment or termination of
the parent-child relationship is requested. Tex. Family Code§ 101.032.
2
The children have a Unifonn Transfer to Minors Account ("UTMA"), which Ms. WaiTen was awarded sole and
exclusive control of on page 9 of the original Divorce Decree dated March 29, 2012.
4
II. It was only after Petitioner filed suit to modify the Trust on September 30, 2013 that Mr.
Weiner amended hiss pleadings in the District Court on October 18, 2013 to request "the
exclusive right to manage the existing ttusts of the children." See page 2 of Exhibit B to
Mr. Weiner's Plea in Abatement. This addition is the only change that was made in the
amended pleadings. See Mr. Weiner's Exhibits A and B to his Plea in Abatement. In
essence, Mr. Weiner amended his pleading to set up a new subject matter in order to
obtain dominant jurisdiction in the District Court. But this is directly contrary to the
Texas Supreme Court's ruling in State of Texas v. Boyd, in which the Court held that a
party cannot obtain dominant jurisdiction by amending its pleadings in the first court to
set up a subject matter similar to a different case in a second court involving the same
parties. State of Texas v. Boyd, 
136 S.W.2d II 07 (Tex. 1940). The plaintiff in Boyd
amended its pleading in the Ha!Tis County District Court to set up a similar subject matter
as another suit involving the same defendant in Travis County. The plaintiff then filed a
plea in abatement alleging that it had a prior suit on the same subject matter pending in
Han-is County. The Court held that such action did not bestow dominant jurisdiction on
the first case because they were wholly dissimilar prior to the amendment. 
Id. These
facts are identical to the case at bar in which Mr. Weiner amended his parent-child
alienation case against his ex-wife to add a new subject matter- management of the Trust
estate - and then alleged that he had a prior suit pending on the same subject matter as
Petitioner's case in the Probate Court. But the law is clear that amending a pleading to
set up a subject matter similar to a second action does not give the first action dominant
jurisdiction where the subject matter of the two cases were "wholly dissimilar" prior to
the amendment. 
Id.
5
RESPONSE TO PLEA TO THE JURISDICTION
12. Mr. Weiner also filed a Plea to the Jurisdiction on October 23, 2013 alleging that the
District Court has continuing exclusive jurisdiction over matters pertaining to the Trust
estate.   But that asse1iion is directly contrary to the statute. Texas Family Code §
155.001(a) confers exclusive continuing exclusive jurisdiction over only the matters
provided for in Title 5 of the Texas Family Code. These include "orders regarding
managing conservatorship, possessory conservatorship, possession of and access to the
child, and support of the child." Tex. Family Code§ 155.003(a). The limits of the District
Comi's continuing exclusive jurisdiction are not boundless. They include only those
matters expressly enumerated in Texas Family Code § 155.003(a), which are not
involved in Petitioner's action to modifY the Trust. Accordingly, this Court should deny
Mr. Weiner's Plea to the Jurisdiction.
13. A hearing is scheduled on the Plea in Abatement and the Plea to the Jurisdiction for
November II, 2013 at I :30 p.m. in this Court.
VENUE
14. Venue of this proceeding is proper in this Comi pursuant to Texas Trust Code §
115.002(b-2) and Texas Probate Code§ 8.
FACTS
15. The Trust is an inter vivos minor's trust created under Internal Revenue Code§ 2503(c)
by Ms. Wan·en and Mr. Weiner by agreement dated March 20, 1996 for the benefit of
their son, DanielS. Weiner, the Primary Beneficimy and Petitioner.
6
16. At the present time, Daniel S. Weiner is the only beneficiary of the Trust. Daniel S.
Weiner is a high school senior and straight-A student at The Kincaid School in Houston,
Texas. He is completing applications to attend college in the Fall of 2014 and is
concemed about being able to depend on distributions fi·om the Tmst to help pay for his
college.
17. The Tmst estate consists of marketable securities and cash in the approximate value of
$113,000 as of August 31, 2013.
18. The Trust is authorized under Section A-1 to make disttibutions to the Ptimary
Beneficiary as follows:
"The income of the trust may be accumulated and retained, in
whole or in pati, or the tmstee may distribute to Daniel, fi·om time
to time, so much or all of the bust estate as, in the trustee's
discretion, is in Daniel's best interests."
19. Pursuant to Section A-2 of the Trust, the Ptimary Beneficiary may withdraw all or part of
the Trust estate within 60 days after becoming age 21, and may thereby te1minate the
trust as to the pati withdrawn.        If the Primaty Beneficiary does not exercise his
withdrawal tight, the Trust continues until the Ptimary Beneficiary becomes age 30.
20. Section A-2 of the Trust provides that in the event the Primary Beneficiary should die
before the Trust tenninates, then all assets remaining in the Trust shall be held or
distributed by the Trustee for the benefit of those in favor of whom the Primary
Beneficiary exercises a power of appointment, or otherwise in the following order:(!) to
the Ptimary Beneficiary's descendants, (2) if none of the descendants are then living, to
7
the trustors' descendants, (3) if none of the trustors' descendants are then living, to the
trustors' heirs.
21. The initial and current bus tees of the Trust are Ms. Warren and Mr. Weiner. In the event
that both Mr. Weiner and Ms. Warren cease to act as tmstee, Bayle Weiner Drubel, Mr.
Weiner's sister, who is believed to live in Dmtmouth, Massachusetts, is appointed
successor tmstee under Section D-l(a) of the Trust.
22. The tmstees were granted a divorce on March 29, 2012. The Divorce Decree ordered
that:
"the following children's trusts are held in ilTevocable tmsts,
which shall continue as written, and that each party will take any
and all necessary steps to provide full co-trustee ownership and
control of each such account including the placing of such
accounts in a deposit and withdrawal agreement requiling both co-
trustees to disburse funds; also known as an "and" account:
I. Fidelity Trust Acct Ending in #8634 (David)
2. Fidelity Trust Acct Ending in #3958 (Daniel)
3. Fidelity Trust Acct Ending in #1942 (Michael)."
See Exhibit B, page I 0.
23. The Texas Trust Code provides that on the petition of a beneficiary, a Court may order
that the trustee be changed or that the trust be otherwise modified if modification of
administrative, non-dispositive tenns of the trust is necessary or appropriate to prevent
waste or avoid impainnent of the Trust's administration. Tex. Trust Code §
112.054(a)(3).
8
24. Petitioner believes that the inability of the trustees to agree on management of the Trust
has impaired the Tmst's administration. Modification of the Tmst is necessary to prevent
the tmstees' personal issues fi·om hindering their ability to effectively administer the
Trust.
RELIEF REQUESTED
25. Petitioner requests that the Court order that the Tmst be modified to allow Daniel S.
Weiner to become trustee of the Trust upon attaining age 18 on March 11, 2014; that
modification of the Trust will further the purposes of the Trust; that modifying the Trust
is necessary or appropriate to prevent waste or avoid impaitment of the Tmst's
administration; and that the Court enter such other orders to effect the modification of the
Trust.
26. Petitioner brings this action for the purpose of preserving and protecting the interests of
the Trust estate and its Primary Beneficiary. The relief sought herein is necessary to
enable the Tmst to fulfill its intended purposes. Accordingly, Petitioner is entitled to
recover reasonable attomey's fees and court costs from the Trust pursuant to Texas Trust
Code § 114.064 ("In any proceeding under this code the comt may make such award of
costs and reasonable and necessary attomey's fees as may seem equitable and just"). If
any of the other patties to this proceeding retain counsel to represent their interests in this
cause, the Court should detennine whether all or any portion of the attorney's fees and
court costs incurred by these parties should be paid by the Tmst.
9
PRAYER
WHEREFORE PREMISES CONSIDERED, Petitioner prays that the Court grant the
requested relief and deny Mr. Weiner's Plea in Abatement and Plea to the Jurisdiction.
Petitioner further prays for such other and further relief to which Petitioner is justly entitled.
Respectfully submitted,
Cantrell & Cantrell, PLLC
By:~·
Carol A. Cantrel , Attorney for PetitiOner
Texas Bar No.: 24043592
Meredith N. Mciver
Texas Bar No.: 24078974
3700 Buffalo Speedway, Suite 520
Houston, TX 77098
Phone: 713-333-0555
Fax: 713-333-0550
10
CERTIFICATE OF SERVICE
I hereby certifY that a true and correct copy of the foregoing instrument has been duly
served, either by hand delivery, certified mail, return receipt requested, electronic service, or
facsimile, to counsel of record indicated below, on this J.\~ day of "-.\0~, 2013.
Sarah Patel Pacheco
Kathleen Tanner Beduze
Crain Caton & James
Five Houston Center,
1401 McKinney, 17th Floor
Houston, TX 77010
spacheco@craincaton.com
713-658-1921 (facsimile)
CAROL A. CANTRELL
Exhibit A
DANIEL STEVEN WEINER 1996 TRUST
By this trust agreement, Andy I. Weiner and Katherine Friedman
Weiner, husband and wife,· both of Harris County, Texas, as
"trusters," establish the Daniel Steven Weiner 1996 Trust for the
benefit of their son, Daniel steven Weiner ("Daniel"), born
March 11, 1996.   Trusters grant, assign and deliver to Andy I.
Weiner and Katherine Friedman weiner, both of Harris County, Texas,
as "trustees," the property described in Attachment A. Attachment
A, which is captioned "Initial Contributions to the Daniel Steven
weiner 1996 Trust," is incorporated by reference as a part of this
trust agreement.
This trust agreement and the trusts established by it are
irrevocable.   No person shall have the right to revoke or amend
this trust agreement or any of its provisions. However, property
acceptable to the trustee may be added to any trust from time to
time in the future by trusters or by any other person (including
additions pursuant to the provisions of the last will of any
person).
All references to "trustee" shall refer to the person or
persons then acting as such.
A.    PRIMARY TRUST
A-1.   Distributions.  The income of the trust may be accumulated
and retained, in whole or in part, or the trustee may distribute to
Daniel, from time to time, so much or all of the trust estate as,
in the trustee's discretion, is in Daniel's best interests.
A-2.   Termination.  Daniel may withdraw any part or all of the
trust estate within 60 days after he becomes age 21, and may
thereby terminate the trust as to the part withdrawn.    Exercise of
this withdrawal right shall be by one or more written instruments
delivered to the trustee within the 60-day period.    If or to the
extent that Daniel does not exercise this withdrawal right, the
trust shall continue until Daniel becomes age 30 or dies before
that age, at which time the trust estate shall be distributed:
(a)    To Daniel.
(b) If Daniel is not then living, to such one or more
persons, corporations or organizations (including Daniel's estate),
as Daniel appoints by a will which specifically refers to this
power of appointment.    If or to the extent that Daniel does not
effectively exercise this power of appointment, the trust estate
shall be distributed:
(1)    To Daniel's descendants,
(2)  If none of Daniel's descendants is then living, to
trusters' descendants.
( 3) If none   of trusters 1      descendants   is   then   living,   to
trusters' heirs.
A-3. Payment of Taxes.     If Daniel's will contains no contrary
directions, the trustee shall pay from the trust estate the entire
increment in taxes payable by reason of Daniel's death (including
any interest or penalties thereon) to the extent (if any) that the
total of such taxes is greater than would have been imposed if no
portion of the trust estate were taken into account in determining
such taxes.
B.    CONTINGENT TRUSTS
B-1. Trusts Established. Any portion of a trust estate upon the
trusts termination (other than a portion withdrawn by Daniel
pursuant to Paragraph A-2) which would be distributable to a
beneficiary who is under age 30 or to a beneficiary who is under a
legal disability instead shall be distributed to the trustee of a
Contingent Trust (unless otherwise directed by the valid exercise
of a power of appointment).        Each beneficiary's portion so
distributed shall be held and administered as the initial trust
estate of a separate trust for the beneficiary.      However, if a
Contingent Trust is already in existence for that beneficiary, any
additional portion to be distributed to the trustee of a Contingent
Trust for the beneficiary shall be added to the trust estate of the
existing contingent Trust.
B-2. Distributions.      The income of each Contingent Trust may be
accumulated and retained, in whole or in part, or the trustee may
distribute to the beneficiary for whom the trust was established,
from time to time, so much or all of the trust estate as, in the
trustee's discretion, is in the beneficiary's best interests.
B-3. Termination. Each contingent Trust shall terminate when the
beneficiary for whom the trust was established has become age 30
and is under no legal disability or upon the beneficiary's earlier
death. Upon termination, the trust estate shall be distributed:
(a)    To the beneficiary.
(b) If the beneficiary is not then living, to such one or
more persons, corporations or organizations as the beneficiary
appoints by a will which specifically refers to this power of
appointment.   If none of the beneficiary's descendants is then
living, this power may not be exercised in favor of the
beneficiary, the beneficiary's estate, the beneficiary's creditors
or the creditors of the beneficiary's estate. If or to the extent
that the beneficiary does not effectively exercise this power of
appointment, the trust estate shall be distributed:
(1)   To the beneficiary's descendants.
-2-
(2) If none of the beneficiary's descendants is then living,
to the descendants of the beneficiary's nearest ancestor who was
one of trusters' descendants and who has descendants then living.
(3) If none of these persons is then living, to trusters,
descendants.
( 4) If none of trusters'       descendants    is then   living,   to
trusters' heirs.
C.   DISTRIBUTIONS
c-1. Distributions to or for Beneficiaries. During the term of a
trust, any distribution to be made to a beneficiary from the trust
may be made (i) to the beneficiary, (ii) if the beneficiary is
under a legal disability or if the trustee determines that the
beneficiary is unable to properly manage his affairs, to a person
furnishing support, maintenance or education for the beneficiary or
with whom the beneficiary is residing, for expenditure on the
beneficiary's behalf, or (iii) to a custodian for a minor
beneficiary, as selected by the trustee, under the Uniform Gifts to
Minors Act of any state. Alternatively, the trustee may otherwise
apply all or a part of the distribution for the beneficiary 1 s
benefit. However, no such distribution shall be made to a trustor,
to any spouse of a trustor, or in any manner that discharges a
legal obligation (including an obligation of support) of a trustor
or any spouse of a trustor. Any distribution under this paragraph
shall be a full discharge of the trustee with respect thereto.
c-2.  Best Interests of Beneficiary.    In making distributions in
the "best interests" of a beneficiary, the trustee may consider the
age of the beneficiary, the costs of the beneficiary's support,
maintenance, education and comfort without regard to any other
resources available to the beneficiary for these purposes, the
effect of any distribution upon the income and transfer tax
liability of the beneficiary or of the trust, and any other factors
deemed relevant by the trustee.
D.    OFFICE OF TRUSTEE
D-1.   Successor Trustee, Co-Trustee.  The following provisions
shall apply to each separate trust established under this trust
agreement:
(a) Successor Trustee.  Should Andy I.       Weiner or Katherine
Friedman Weiner cease to act as trustee, for        any reason, the one
remaining shall continue to act as trustee.         Should both Andy I.
Weiner and Katherine Friedman Weiner cease to      act as trustees, for
any reason, trusters appoint Bayle Weiner          Drubel as successor
trustee.
-3-
(b) Appointment of Successor Trustee by Trustee. At any time
after qualifying as trustee, any trustee may appoint a successor
trustee to act in his place, either immediately or in the future
upon any stated contingency, and may thereby supplement the
provisions of subparagraph (a).
(c) Appointment of Successor Trustee by Beneficiaries. If at
any time there is no trustee acting and none has been appointed, a
majority of the beneficiaries (acting through the beneficiary's
natural or legal guardian or legal representative, in the case of
a beneficiary under a legal disability) who might then be entitled
to receive a distribution from the trust estate shall appoint a
successor trustee.
(d)   Appointment of Co-Trustee.    The    trustee    (acting
unanimously if more than one) may appoint one or more co-trustees.
(e) Who May Be Appointed. A successor trustee or co-trustee
may be any individual, bank or trust company and may be domiciled
anywhere.
(f)  Procedure for Appointment. Appointment shall be made by
written instrument filed with the trust records.          Any such
appointment may be changed or revoked prior to the date it becomes
effective.    Any such appointment may be limited in any manner
deemed advisable by the person making the appointment, including,
for example, restricting the power over distributions as necessary
to avoid the imposition of any tax upon the trust, the appointee or
the appointee's estate.                                   ·
D-2. Resignation of Trustee. A trustee may resign from a trust
without the necessity of any court proceeding upon meeting these
conditions:
(a) Notice. At least 30 days' written notice      (if not waived)
shall be given to each beneficiary who might then       be entitled to
receive a distribution from the trust estate, If a      beneficiary is
under a legal disability, notice shall be given to       (or waived by)
the beneficiary's natural or legal guardian.
(b)  Accounting.   If and to the extent required by the
successor trustee, an accounting for the administration of the
trust shall be given to the successor trustee.      The successor
trustee shall be fully protected in relying upon such accounting.
D-3.    Rights and Liabilities.
(a)  Bond Not Required. No bond or other security shall be
required of any trustee.
(b)   Liabilities.   This agreement shall always be construed in
-4-
favor of the validity of any act by or omission of any trustee. A
trustee shall not be liable for any act or omission except in the
case of gross negligence, bad faith or fraud.    Specifically, in
assessing the propriety of any investment of a trust estate, the
overall performance of the entire trust estate shall be taken into
account.
(c) Compensation. Each trustee shall be entitled to receive
reasonable compensation for services actually rendered to a trust.
E.   ADMINISTRATION
E-1. General Powers of Trustee. To carry out the trust purposes
but subject to any limitations stated elsewhere herein, the trustee
of each trust shall have the following powers, which may be
exercised free from court supervision, and which shall exist until
all of the trust estate has been distributed:
(a) Trust Estate. The trustee may invest and reinvest all or
any part of the trust estate in property of any description and may
retain as a part of the trust estate any property acquired at any
time and in any manner. Specifically, and without regard to the
provisions of any applicable state law, the trustee may retain, or
invest and reinvest in, property unproductive of income, shares of
open or closed end investment trusts or companies, wasting assets,
and any other property, regardless of location and without regard
to any requirement of diversification as to kind or amount.
(b)  Business Interests. The trustee may continue operation
of any business entity, in any business form, with all or any part
of the trust estate, and may reorganize or liquidate any such
entity at any time.
(c) Transfers. Loans. The trustee may lease, sell, transfer,
or encumber in any manner (including with purchase money mortgages)
all or any part of the trust estate, and may loan or borrow money
in any manner (including by joint and several obligations) with or
without security. Subject to the provisions of Paragraph E-3(a),
the trustee may purchase assets from the estate of a trustor and
may loan funds to the estate of a trustor at such rate Of interest
and with such security as the trustee determines to be in the best
interests of the current beneficiaries of the trust.
(d) Dealings With Related Parties. The trustee may deal with
any person or entity regardless of any relationship or identity of
any trustee to or with that person or entity and may hold or invest
all or any part of the trust ef;tate in common or undivided
interests with that person or entity.
(e) Agents, Employees. The trustee may employ and compensate
agents and other employees ~nd may delegate to them any and all
discretions and powers.
-5-
(f) Partitions. Distributions. The trustee may partition all
or any part of any interest, may pay and receive such moneys or
properties as may be necessary to equalize differences, and in so
doing (i) may make any distribution of all or any part of the trust
estate in any manner (including composing shares differently) and
(ii) may evaluate any property, which valuation shall be binding on
all beneficiaries.
(g)   Claims, Controversies.    The trustee may maintain and
defend any claim or controversy by or against the trust without the
joinder or consent of any beneficiary.
(h)    Additional Powers. In addition, the trustee shall have
all rights, privileges and powers now or hereafter granted to
trustees in Texas, including those granted under the Texas Trust
Code.      Any subsequent legislation or regulation expanding or
limiting the rights, privileges and powers granted a trustee shall
apply to all trusts hereunder unless the trustee elects not to have
such legislation or regulation apply to a particular trust by a
written instrument filed with the trust records.       However, the
provisions made for the various beneficiaries under this trust
agreement are exclusive. Any statute that purports to enlarge the
class of beneficiaries to whom distributions may be made or the
purposes for which distributions may be made shall not apply to any
trust.     All trust powers may be exercised upon such terms as the
trustee deems advisable and may affect trust properties for any
length of time regardless of the duration of the trust. Generally,
and subject only to the terms of this trust agreement, the trustee
shall hold, manage, control, use, invest, reinvest, and dispose of
the trust estate to the same extent as if the trustee were the fee
simple owner thereof.
E-2.     Principal and Income Determinations.      The receipts,
disbursements and reserves of each trust may be allocated, on a
cash or accrual basis, between principal and income in the
trustee's discretion without regard to the provisions of any
statute.    To the extent the trustee does not exercise this
discretionary power, the provisions of the Texas Trust Code shall
control.
E-3.   Restrictions on the Exercise of Certain Powers.
(a)  Dealings with Trust Estate. No power granted the trustee
shall be construed to enable any person to purchase, exchange, or
otherwise deal with or dispose of any trust estate for less than an
adequate consideration in money or money's worth or to authorize
loans to any person without adequate interest.      No part of any
trust estate may be (i) loaned to a trustor or to any spouse of a
trustor or (ii) applied to the payment of premiums on policies of
insurance on the life of a trustor or on the life of any spouse of
a trustor.
-6-
(b)   Distributions to or for Trustee. Any power to make
discretionary distributions to or for the benefit of a person who
is serving as trustee of a trust (including distributions to the
person's spouse and distributions in discharge of any legal
obligation of the person) shall be exercisable solely by the
trustee or trustees other than that person. If no other trustee is
then serving, such power shall not be exercisable.
E-4.  Release and Delegations of Powers.    Any power granted to a
trustee may be released, in whole or in part, temporarily or
permanently. Except as provided in Paragraph E-3, any such power
may be delegated, in whole or in part, temporarily or permanently,
to any other trustee then acting. A release or delegation shall be
by written instrument filed with the records of each trust to which
the release or delegation applies.
F.   DEFINITIONS AND GENERAL PROVISIONS
F-1. Trust Estate.   "Trust estate" means all assets, however and
whenever acquired (including income and accumulated income) 1 which
may belong to a trust at any given time.
F-2. Descendants. "Descendants" means the legitimate children of
the person or persons designated and the legitimate lineal
descendants of such children, and includes any person adopted
before becoming age 18 and the adopted person's descendants.      A
posthumous child shall be considered as living at the death of his
parent. Whenever a distribution is to be made to the descendants
of any person, the property to be distributed shall be divided into
as many equal shares as there are living children of the person and
deceased children of the person who left descendants who are then
living.  Each living child shall take one share and the share of
each deceased child shall be divided among his then living
descendants in the same manner.   "Trusters' descendants" includes
only those persons descended from both trusters.
F-3.   Heirs.   Any distribution to be made to the "heirs" of a
person shall be made to the individuals who would have inherited
the person's personal property if the person had died intestate at
the time the distribution is to be made, domiciled in Texas and not
married, under the laws of Texas in force on the effective date of
this trust agreement, with the shares of taking determined by those
laws. However, both trusters and any spouse of a trustor shall be
deemed to have died prior to the time that any such distribution is
to be made. A distribution to "trusters• heirs" shall be made to
the heirs of Andy I. Weiner.
F-4. Internal Revenue Code.    "Internal Revenue Code" means the
Internal Revenue Code of 1986, as amended, or corresponding
provisions of any subsequent federal tax laws.
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F-5. other Terms. The use of any gender includes · the other
genders, and the use of either the singular or the plural includes
the other.
F-6. Spendthrift Provision. No beneficiary shall have the power
to anticipate, encumber, or transfer his interest in any trust
estate in any manner. No part of any trust estate shall be liable
for or charged with any debts, contracts, liabilities or torts of
a beneficiary or subject to seizure or other process by any
creditor of a beneficiary.    Nothing in this paragraph shall be
construed to limit the otherwise valid exercise of a power of
appointment or right of withdrawal given by this trust agreement.
F-7. Texas Law Applies. The situs of the trusts established under
this trust agreement is Texas.     Wherever possible, the laws of
Texas shall apply to the construction, administration and validity
of each trust.
F-8. Maximum Term of Trusts. No trust shall continue for a period
longer than 21 years after the death of the last to die of trusters
and all of trusters' descendants who are living on the effective
date of this trust agreement. Any trust still in force at the end
of such period shall terminate, and the trust estate shall be
distributed to the beneficiary for whom the trust was established.
F-9.  Powers of Appointment Exercisable by Beneficiaries.       In
exercising a power of appointment given to a beneficiary by this
trust agreement, the beneficiary may appoint the property subject
to the power outright to the appointee, in trust, or to a custodian
for the appointee under the Uniform Gifts to Minors Act of any
state. If the beneficiary appoints to a custodian, he may select
the custodian. If the beneficiary appoints in trust, he may select
the trustee or trustees, may establish such administrative terms
for the trust as he deems appropriate, and may impose lawful
spendthrift restrictions.   He may give the trustee discretionary
powers over the income and principal, and may create a trust that
has several permissible distributees. He may create life interests
or other limited interests in some appointees with future interests
in favor of other appointees, may appoint different types of
interests among the appointees, and may create new powers of
appointment in a trustee or trustees or in any appointee. He may
impose lawful conditions on an appointment and,, in general, may
appoint to or among the appointees in any lawful manner.
In determining whether, in what manner and to what extent a
testamentary power of appointment has been exercised by a
beneficiary, the trustee may act in reliance upon a court order
admitting an instrument to probate as the beneficiary's last will
or an order finding that the beneficiary died intestate.     Unless
within six months after the beneficiary's death the trustee has
actual notice of the existence of proceedings to probate a will of
the beneficiary, the trustee shall assume that the beneficiary died
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intestate. The foregoing prov1s1ons are intended to expedite the
prompt and efficient administration of the trust and to protect the
trustee from any action taken or distribution made in accordance
with these provisions.   Nothing in this paragraph shall limit or
qualify any power of appointment given by this trust agreement or
any right which an appointee or taker in default of appointment may
have against any person receiving a distribution from the trustee
irrespective of the place of probate or of the time of discovery of
a will exercising the power or any other action taken in the
beneficiary's estate.
G.   ACCEPTANCE BY TRUSTEE
By signing this trust agreement, the trustee (i) accepts these
trusts and all of the rights, powers and duties attached to the
office of trustee as provided herein, (ii) agrees to serve as
trustee of the Daniel Steven Weiner 1996 Trust and of any
Contingent Trusts which may be established under this trust
agreement, (iii) acknowledges receipt of the property described in
Attachment A, and (iv) agrees to hold and administer each trust
estate in accordance with the terms of this trust agreement.
This trust agreement is executed effective as of the 20th day
of March, 1996.
Andy I. Weiner, Trustor and
Trustee
Katherine Friedman Weiner,
Trustor and Trustee
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ATTACHMENT A: INITIAL CONTRIBUTIONS
TO THE DANIEL STEVEN WEINER 1996 TRUST
$1.00
Andy I. Weiner, Trustor and
Trustee
Katherine Friedman We1ner,
Trustor and Trustee
3559:painsc\0157136
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Exhibit B
NO. 2011-01040
IN THE MATTER OF                              §                   IN THE DISTRICT COURT
THE MARRIAGE OF                               §
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KATHERINE F. WEINER
AND
ANDY I. WEINER                        F cI
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§    E d. o9TH JUDICIAL DISTRICT
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AND IN THE INTEREST OF             M~ 2 9 20\Z
DAVID A. WEINER, DANIELS.              §
WEINER AND MICHAEL H. Time: --uiH§ii~couUnin~0.T'&.ie.a;s,- - -
WEINER, CHILDREN        ey             § oepu>1            HARRIS COUNTY, TEXAS
AGREED FINAL DECREE OF DIV:ORCE
On February 17, 2012,     the Court heard the parties' agreement for the
terms of their Agreed Final Decree of Divorce as set out in the parties' Mediated
Settlement Agreement.            Andy I. Weiner and his attorney, Eileen M. Gaffney
appearing for Joan F. Jenkins appeared in person and proved up the agreement.
After hearing the parties' agreement, the court set this case for entry.
Appearances
Petitioner, Katherine F. Weiner, appeared at entry through her attorney of
record, Randy B. Wilhite and announced ready.
Respondent, Andy I. Weiner, appeared in person and through attorney of
record, Joan F. Jenkins, and announced ready.
Record
The making of a record of testimony was waived by the parties with the
Weiner- Agreed Final Decree of Divorce              RECORDER'S MEMORANDUM                    Page 1
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consent of the Court.
Jurisdiction and Domicile
The Court finds that the pleadings of Petitioner ar.e in due form and contain
all the allegations, information, and prerequisites required by law. The Court,
after receiving evidence, finds that it has jurisdiction of this case and of all the
parties and that at least sixty days have elapsed since the d~te the suit was filed.
The Court further finds that, at the time this suit was filed, Petitioner had
been a domiciliary of Texas for the preceding six-month period and a resident of
the county in which this suit was filed for the preceding ninety-day period. All
persons entitled to citation were properly cited.
Jury
A jury was waived, and questions of fact and of law were submitted to the
Court.
Agreement of Parlies
The Court finds that the parties have entered into an Agreement Incident to
Divorce, in a document separate from this Final Decree of Divorce. The Court
approves the agreement and incorporates it by reference as part of this decree as
if it were recited herein verbatim and orders the parties to do all things-necessary to
effectuate the agreement. A copy of the agreement is not filed with the records of
ii    this Court.
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The agreements in this Final Decree of Divorce were reached in mediation
with Harry L. Tindall. This Final Decree of Divorce is stipulated to represent a
merger of a mediated settlement agreement between the parties. To the extent
there exist any differences between the mediated settlement agreement and this
Final Decree of Divorce, this Final Decree of Divorce shall control in all instances.
Divorce
IT IS ORDERED AND DECREED that Katherine F. Weiner, Petitioner, and
Andy I. Weiner, Respondent, are divorced and that the marriage between them is
dissolved on the ground of insupportability.
Children of the Maniage
The Court finds that Petitioner and Respondent are the parents of the
following children:
Name:                            David A. Weiner
Sex:                             Male
Birth date:                      June 14, 1994
Home state:                      Texas
Social Security number:          xxx-xx-x861
Driver's license number
and issuing state:               xxxxx273, Texas
Name:                             Daniel S. Weiner
Sex:                              Male
Birth date:                       March 11, 1996
Home state:                       Texas
Social Security number:           xxx-xx-x039
Driver's license number
and issuing state:                · xxxxx996Texas
Weiner- Agreed Final Decree of Divorce
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Name:                           Michael H. Weiner
Sex:                            Male
Birth date:                     November 1, 1999
Home state:                     Texas
Social Security number:         xxx-xx-x735
Driver's license number
and issuing state:              N/A
The Court finds no other children of the marriage are expected.
Parenting Plan
The Court finds that the provisions in this decree relating to the rights and
duties of the parties with relation to the children, possession of and access to the
children, child support, and optimizing the development of a close and continuing
relationship between each party and the children constitute the parties' agreed ·
parenting plan.
ConseNatorship
The Court, having considered the circumstances of the parents and of the
children, finds that the following orders are in the best interest of the children.
IT IS ORDERED that Katherine F. Weiner and Andy I. Weiner are appointed
Joint Managing Conservators of the following children:        David A. Weiner, Daniel
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'8      S. Weiner and Michael H. Weiner.
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.,.               IT IS ORDERED that, at all times, Katherine F. Weiner, as a parent joint
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[::;    managing conservator, shall have the following rights:
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"'~            1.   the right to receive information from any other conservator of the
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zs       children concerning the health, education, and welfare of the children;
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A        Weiner- Agreed Final Decree of Divorce                                   Page4
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2.    the right to confer with the other parent to the extent possible befor.e
making a decision concerning the health, education, and welfare of the children;
3.     the right of access to medical, dental, psychological, and educational
records of the children;
4.      the right to consult with a physician, dentist, or psychologist of the
children;
5.    the right to consult with school officials concerning the children's
welfare and educational status, including school activities;
6.     the right to attend school activities;
7.     the right to be designated on the children's records as a person to be
notified in case of an emergency;
8.    the right to consent to medical, dental, and surgical treatment during
an emergency involving an immediate danger to the health and safety of the
children; and
9.    the right to manage the estates of the children to the extent the
estates have been created by the parent or the parent's family.
IT IS ORDERED that, at all times, Andy I. Weiner, as a parent joint
managing conservator, shall have the following rights:
1.   the right to receive information from any other conservator of the
children concerning the health, education, and welfare of the children;
2.    the right to confer with the other parent to the extent possible before
making a decision concerning the health, education, and welfare of the children;
3.     the right of access to medical, dental, psychological, and educational
records of the children;
li           4.      the right to consult with a physician, dentist, or psychologist of the
j     children;
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Weiner -Agreed Final Decree of Divorce
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5.    the right to consult with school officials concerning the children's
welfare and educational status, including school activities;
6.     the right to attend school activities;
7.     the right to be designated on the children's records as a person to be
notified in case of an emergency;
8.    the right to consent to medical, dental, and surgical treatment during
an emergency involving. an immediate danger to the health and safety of the
children; and
9.    the right to manage the estates of the children to the extent the
estates have been created by the parent or the parent's family.
IT IS ORDERED that, at all times, Katherine F. Weiner and Andy I. Weiner,
as parent joint managing conservators, shall each have the following duties:
1.    the duty to inform the other conservator of the children in a timely
manner of significant information concerning the health, education, and welfare of
the children; and
2.    the duty to inform the other conservator of the children if the
conservator resides with for at least thirty days, marries, or intends to marry a
person who the conservator knows is registered as a sex offender under chapter
62 of the Code of Criminal Procedure or is currently charged with an offense for
which on conviction the person would be required to register under that chapter.
IT IS ORDERED that this information shall be tendered in the form of a notice
made as soon as practicable, but not later than the fortieth day after the date the
conservator of the children begins to reside with the person or on the tenth day
after the date the marriage occurs, as appropriate. IT IS ORDERED that the
notice must include a description of the offense that is the basis of the person's
requirement to register as a sex offender or of the offense with which t~e person is
charged.     WARNING:         A CONSERVATOR COMMITS AN OFFENSE
PUNISHABLE AS A CLASS C MISDEMEANOR IF THE CONSERVATOR FAILS
TO PROVIDE THIS NOTICE.
IT IS ORDERED that, during her periods of possession, Katherine F.
Weiner -Agreed Final Decree of Divorce
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1
Weiner, as parent joint managing conservator, shall have the following rights and
duties:
1.    the duty of care, control, protection, and reasonable discipline of the
children;
2.    the duty to support the children, including providing the children with
clothing, food, shelter, and medical and dental care not involving an invasive
procedure;                                                                   -
3.    the right to consent for the children to medical and_ dental care not
involving an invasive procedure; and
4.     the right to direct the moral and religious training of the children.
IT IS ORDERED that, during his periods of possession, Andy I. Weiner, as
parent joint managing conservator, shall have the following rights and duties:
1.       the duty of care, control, protection, and reasonable discipline of the
children;
2.    the duty to support the children, including providing the children with
clothing, food, shelter, and medical and dental care not involving an invasive
procedure;
3.    the right to consent for the children to medical and dental care not
involving an invasive procedure; and
4.    the right to direct the moral and religious training of the children.
IT IS ORDERED that Katherine F. Weiner, as a parent joint managing
conservator, shall have the following rights and duty:
1.    the exclusive right to establish the primary residence and legal
domicile of the children in Harris County, Texas or a county that is contiguous to
Harris County, Texas, subject to the provisions hereinafter.
2.    the exclusive right to consent to medical, dental, and surgical
Weiner- Agreed Final Decree of Divorce                                      Page 7
treatment involving invasive procedures;
3.     the exclusive right to consent to psychiatric and psychological
treatment of the children;
4.     the exclusive right to receive and give receipt for periodic payments
for the support of the children and to hold or disburse these funds for the benefit of
the children;
5.     the exclusive right to represent the children in legal. action and to
make other decisions of substantial legal significance concerning the children;
6.     the exclusive right to consent to marriage and to enlistment in the
armed forces of the United States;
7.   the right, subject to the agreement of the other parent conservator, to
make decisions concerning the children's education;
8.   except as provided by section 264.0111 of the Texas Family Code,
the independent right to the services and earnings of the children;
9.    except when a guardian of the children's estates or a guardian or
attorney ad litem has been appointed for the children, the independent right to act
as an agent of the children in relation to the children's estates if the children's
action is required by a state, the United States, or a foreign government; and
10. the exclusive duty to manage the estates of the children to the extent
the estates have been created by community property or the joint property of the
parent.
IT IS ORDERED that Andy I. Weiner, as a parent joint managing
conservator, shall have the right, subject to the agreement of the other parent
conservator, to make decisions concerning the children's education, and in this
regard, the Court finds that Andy I. Weiner has agreed for each child to remain at
the Kinkaid School through each child's graduation from such School, and that
there are other more specific provisions herein further delineating the obligation of
Weiner- Agreed Final Decree of Divorce
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Andy I. Weiner to pay for the Kinkaid School for the children.
The Court finds that, in accordance with section 153.001 of the Texas
Family Code, it is the public policy of Texas to assure that children will have
frequent and continuing contact with parents who have shown the ability to act in
the best interest of the child, to provide a safe, stable, and nonviolent environment
for the child, and to encourage parents to share in the rights and duties of raising
their child after the parents have separated or dissolved their marriage. IT IS
ORDERED that, so long as the principal residence of Andy I Weiner is in either
Harris County, Texas or a county that is contiguous to Harris County, Texas, the
primary residence of the children shall be in Harris County, Texas or a county that
is contiguous to Harris County, Texas, and the parties shall not remove the
children from such designated area for the purpose of changing the primary
residence of the children until modified by further order of the court of continuing
jurisdiction or. by written agreement signed by the parties and filed with the court.
IT IS ORDERED that the following custodial accounts now held by the
parties for the parties' children are placed· under the sole and exclusive control of
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':5   Katherine F. Weiner:
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1.    Fidelity UTMA Ace! Ending in #4270; and
2.   Fidelity UTMA Acct Ending in #6843.
Unless these documents have been previously executed, Andy I. Weiner is
Weiner- Agreed Final Decree of Divorce                                  Page 9
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ORDERED to appear in the law offices of Randall B. Wilhite at 4265 San Felipe
Street, Suite 1400, Houston, Texas 77027, at 2:00p.m. on March 30, 2012, and to
execute, have acknowledged, and deliver to Katherine F. Weiner all documents
necessary to effectuate Katherine F. Weiner's sole and exclusive control of the
accounts.
IT IS ORDERED that the following children's trusts are held in irrevocable
trusts, which shall continue as written, and that each party will take any and all
necessary steps to provide full co-trustee ownership and control of each such
account including the placing of such accounts in a deposit and withdrawal
agreement requiring both co-trustees to disburse funds; also known as an "and"
account:
1.    Fidelity Trust Acct Ending in #8634 (David);
2.    Fidelity Trust Acct Ending in #3958 (Daniel); and
3.    Fidelity Trust Acct Ending in #1942 (Michael).
Possession and Access
1.    Modified Possession Order
The Court finds that the parties have entered into a Mediated
Settlement Agreement providing for a non-expanded, non-standard
possession order as more specifically herein provided.
IT IS ORDERED that each conservator shall comply with all terms
and conditions of this Modified Possession Order. IT IS ORDERED that
this Modified Possession Order is effective immediately and applies to all
periods of possession occurring on and after the date the Court signs this
Weiner- Agreed Final Decree of Divorce ·                   Page 10
Modified Possession Order.       IT IS, THEREFORE, ORDERED:
(a)    Definitions
1.     In this Modified Possession Order "school" means the
primary or secondary school in which the child is enrolled or, if the
child is not enrolled in a primary or secondary school, the public
school district in which the child primarily resides.
2.    In this Modified Possession Order "child" includes each
child, whether one or more, who is a subject of this suit while that child
is under the age of eighteen years and not otherwise emancipated.
(b)     Mutual Agreement or Specified Terms for Possession
IT IS ORDERED that the conservators shall have possession of
the child at times mutually agreed to in advance by the parties, and, in
the absence· of mutual agreement, it is ORDERED that the
conservators shall have possession of the child under the specified
terms set out in this Modified Possession Order.
©      Except as otherwise expressly provided in this Modified
Possession Order, Andy I. Weiner shall have the right to possession
of the child as follows:
1.     Weekends -
On weekends, beginning at 6:00 p.m., on the first, third,
and fifth Friday of each month and ending at 6:00 p.m. on the
following Sunday, provided that upon 14 days' advance written notice
of an out-of-town trip, Andy I. Weiner may pick up at 4 p.m. one time
every 60 days.
2.    Thursdays - On Thursday of each week during the
regular school term, beginning at 4:00 p.m. and ending at 8:00 p.m.
3.    Spring Vacation in Even-Numbered Years - In
even-numbered years, beginning at 5:00p.m. on the day the child is
dismissed from school for the school's spring vacation and ending at
5:00 p.m. on the day before school resumes after that vacation.
Weiner • Agreed Final Decree of Divorce                       Page 11
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4.      Extended Summer Possession by Andy I. Weiner -
With Written Notice by April 1 - On or before April 1•t of each
year, Andy I. Weiner shall designate one period of 14 consecutive
days (which may be exercised in 2 one week periods of possession,
separated by no less than 14 days), beginning no earlier than the day
after the child's school is dismissed for the summer vacation and
ending no later than 7 days before school resumes for the next school
year, during which he shall have his summer periods of possession
with the children. These periods of possession shall begin and end at
6:00 p.m. on each applicable day.
Notwithstanding the Thursday periods of possession during the
regular school term and the weekend periods of possession
ORDERED for Andy I. Weiner, it is expressly ORDERED that
Katherine F. Weiner shall have a superior right of possession of the
child as follows:
1.    Spring Vacation in Odd-Numbered Years - In
odd-numbered years, beginning at 5:00 p.m. on the day the child is
dismissed from school for the school's spring vacation and ending at
6:00 p.m. on the day before school resumes after that vacation.
2.    Summer Weekend Possession by Katherine F. Weiner-
On or before April 15th of each year, Katherine F. Weiner shall
designate 14 consecutive days, or at her election, two 7 day periods
beginning no earlier than the day" after the child's school is dismissed
for the summer vacation and ending no later than 7 days before
school resumes for the next school year, during which she will have
her summer period(s) of possession with the children, provided the
dates do not conflict with Father's Day weekend or the summer
periods designated by Andy I. Weiner. These periods of possession
shall begin and end at 6:00 p.m. on each applicable day.
(d)     Holidays
Notwithstanding the weekend and Thursday periods of
possession of Andy I. Weiner, Katherine F. Weiner and Andy I.
Weiner shall have the right to possession of the child as follows:
Weiner- Agreed Final Decree of Divorce                    Page12   ¥
1.     Christmas Holidays in Even-Numbered Years - In
even-numbered years, Andy I. Weiner shall have the right to
possession of the child beginning at 6:00 p.m. on the day the child is
dismissed from school for the Christmas school vacation and ending
at noon on December 28, and Katherine F. Weiner shall have the right
to possession of the child beginning at noon on December 28 and
ending at 6:00 p.m. on the day before school resumes after that
Christmas school vacation.
2.    Christmas Holidays in Odd-Numbered Years - In
odd-numbered years, Katherine F. Weiner shall have the right to
possession of the child beginning at 6:00 p.m. on the day the child is
dismissed from school for the Christmas school vacation and ending
at noon on December 28, and Andy I. Weiner shall have the right to
possession of the child beginning at noon on December 28 and
ending at 6:00 p.m. on the day before school resumes after that
Christmas school vacation.
3.    Thanksgiving     in   Odd~Numbered        Years         In
odd-numbered years, Andy I. Weiner shall have the right to
possession of the child beginning at 6:00 p.m. on the day the child is
dismissed from school for the Thanksgiving holiday and ending at
6:00p.m. on the Sunday following Thanksgiving.
4.    Thanksgiving     in   Even-Numbered Years               In
even-numbered years, Katherine F. Weiner shall have the right to
possession of the child beginning at 6:00 p.m. on the day the child is
dismissed from school for the Thanksgiving holiday and ending at
6:00 p.m. on the Sunday following Thanksgiving.
5.    Father's Day - Andy I. Weiner shall have the right to
possession of the child each year, beginning at 6:00 p.m. on the
Friday preceding Father's Day and ending at 6:00 p.m. on Father's
Day, provided that if Andy I. Weiner is not oth~rwise entitled under this
Modified Possession Order to present possession of the child, he
shall pick up the child from Katherine F. Weiner's residence and
return the child to that same place.
6.      Mother's Day- Katherine F. Weiner shall have the right to
Weiner- Agreed Final Decree of Divorce                     Page 13
possession of the child each year, beginning at 6:00 p.m. on the
Friday preceding Mother's Day and ending at 6:00 p.m. on Mother's
Day, provided that if Katherine F. Weiner is not otherwise entitled
under this Modified Possession Order to present possession of the
child, she shall pick up the child from Andy I. Weiner's residence and
return the child to that same place.
(e)     Undesignated Periods of Possession
Katherine F. Weiner shall have the right of possession of the
child at all other times not specifically designated in this Modified
Possession Order for Andy I. Weiner.
(f)    General Terms and Conditions
Except as otherwise expressly provided in this Modified
Possession Order, the terms and conditions of possession of the child
are as follows:
1.    Surrender of Child by Katherine F. Weiner- Katherine F.
Weiner is ORDERED to surrender the child to Andy I. Weiner at the
beginning of each period of Andy I. Weiner's possession at the
residence of Katherine F. Weiner.
2.    Return of Child by Andy I. Weiner - Andy I. Weiner is
ORDERED to return the child to the residence of Katherine F. Weiner
at the end of each period of possession.
3.     Surrender of Child by Andy I. Weiner - Andy I. Weiner is
ORDERED to surrender the child to Katherine F. Weiner, if the child is
in Andy I. Weiner's possession or subject to Andy I. Weiner's control,
at the beginning of each period of Katherine F. Weiner's exclusive
periods of possession, at the place designated in this Modified
Possession Order.
4.    Return of Child by Katherine F. Weiner - Katherine F.
Weineris ORDERED to return the child to Andy I. Weiner, if Andy I.
Weiner is entitled to possession of the child, at the end of each of
Katherine F. Weiner's exclusive periods of possession, at the place
designated in this Modified Possession Order.
Weiner- Agreed Final Decree of Divorce
,.
5.    Notwithstanding any other prov1s1on herein to the
contrary, any child with a driver's license shall be permitted to drive
himself.to and from each period of possession and during each period
of possession; however, any child without a driver's license (which at
this time includes Daniel Weiner and Michael Weiner) is ORDERED
to ride only with Andy I. Weiner.
6.     Personal Effects - Each conservator is ORDERED to
return with the child the personal effects that the child brought at the
beginning of the period of possession.
7.    Designation of Competent Adult- Each conservator may
designate any competent adult to pick up and return the child, as
applicable. IT. IS ORDERED that a conservator or a designated
competent adult be present when the child is picked up or returned.
8.    Inability to Exercise Possession - Each conservator is
ORDERED to give notice to the person in possession of the child on
each occasion that the conservator will be unable to exercise that
conservator's right of possession for any specified period.
9.    Written Notice - Written notice shall be made to the other
parent via e-mail correspondence to the other parent's e-mail
address, including all notices from one parent to the other of any
changes in a party's e-mail address. Each party is ORDERED to
provide any change in the e-mail address designated by each such
party as the one to be used for notification by the other party within 7
days of a change thereof.
This concludes the Modified Possession Order.
2.    Provisions for Jewish Religious Holidays
In addition to the holiday periods of possession set forth in the
Modified Possession Order, Andy I. Weiner and Katherine F. Weiner shall
share the Jewish holidays as set forth below:
a.    Rosh      Hashanah            Even-Numbered   Years.       In   all
Weiner- Agreed Final Decree of Divorce
f
even-numbered years Andy I. Weiner shall have possession of the children
for a period beginning at 5:00 p.m. on the night before the first day of Rosh
Hashanah and ending at 9:00p.m. on the same day; Katherine F. Weiner
shall have possession of the children from 10:00 a.m. until 8:00 p.m. on the
first day of Rosh Hashanah.
b.      Rosh Hashanah- Odd-Numbered Years.        In all odd-numbered
years Katherine F. Weiner shall have possession of the children for a period
beginning at 5:00 p.m. on the night before the first day of Rosh Hashanah
and ending at 9:00 p.m. on the same day; Andy I. Weiner shall have
possession of the children from 10:00 a.m. until 8:00 p.m. on the first day of
Rosh Hashanah.
c.     Yom Kippur - Odd-Numbered Years - In all odd-numbered
years, Katherine F. Weiner shall have possession of the children for a period
beginning at 5:00 p.m. on the night before the first day of Yom Kippur and
ending at 9:00 p.m. on the same day; Andy I. Weiner shall have possession
of the children from 10:00 a.m. until8:00 p.m. on the first day of Yom Kippur.
d.     Yom Kippur - Even-Numbered Years - In all even-numbered
years, Andy I. Weiner shall have possession of the children for a period
beginning at 5:00 p.m. on the night before the first day of Yom Kippur and
ending at 9:00 p.m. on the same day; Katherine F. Weiner shall have
Weiner- Agreed Final Decree of Divorce                    Page 16
possession of the children from 10:00 a.m. until 8:00p.m. on the first day of
Yom Kippur.
e.     Passover - Even-Numbered Years - In all even-numbered
years, Andy I. Weiner shall have possession of the children for a period
beginning at 5:00 p.m. on the night before the first full day of Passover and
ending at 9:00 p.m. on the same day.
f.      Passover- Odd-Numbered Years- In all odd-numbered years,
Katherine F. Weiner shall have possession of the children for a period
beginning at 5:00 p.m. on the night before the first full day of Passover and
ending at 9:00 p.m. on the same day.
3.     Duration
The periods of possession ordered above apply to each child the
subject of this suit while that child is under the age of eighteen years and not
otherwise emancipated.
4.      Noninterference with Possession
IT IS ORDERED that neither conservator shall take possession of the
children during the other conservator's period of possession unless there is
a prior written agreement signed by both conservators or in case of an
emergency.
5.     Termination of Orders
Weiner- Agreed Final Decree of Divorce                     Page 17
1
The provisions of this decree relating to conservatorship, possession,
or access terminate on the remarriage of Katherine F. Weiner to Andy I.
Weiner unless a nonparent or agency has been appointed conservator of
the children under chapter 153 of the Texas Family Code.
Child Support
IT IS ORDERED that Andy I. Weiner is obligated to pay and shall pay to
Katherine F. Weiner child support of two thousand two hundred fifty dollars
·                  IJ..prll
($2,250) per month, with the first payment being due and payable on           MMeh 1,
2012, and a like payment being due and payable on the 1st day of each month
thereafter until the first month following the date of the earliest occurrence of one of
the events specified below:
1.'    any child reaches the age of eighteen years or graduates from high
school, whichever occurs later, subject to the provisions for support beyond the
age of eighteen years set out below;
2.      any child marries;
3.      any child dies;
4.     the parent-child relationship is terminated based on genetic testing
that excludes the obligor as the child's genetic father;
5.     the child enlists in the armed forces of the United States and begins
ii   active service as defined by section 101 of title 10 ofthe United States Code; or
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6.    any child's disabilities are otherwise removed for general purposes.
Thereafter, Andy I. Weiner is ORDERED to pay to Katherine F. Weiner child
support of one thousand eight hundred seventy-five dollars ($1 ,875) per month,
due and payable on the 1st day of the first month immediately following the date of
the earliest occurrence of one of the events specified above for another child and a
like sum of one thousand eight hundred seventy-five dollars ($1 ,875) due and
payable on the 1st day of each month thereafter until the next occurrence of one of
the events specified above for another child.
Thereafter, Andy I. Weiner is ORDERED to pay to Katherine F. Weiner child
support of one thousand five hundred dollars ($1 ,500) per month, due and payable
on the 1st day of the first month immediately following the date of the earliest
occurrence ofone of the events specified above for another child and a like sum of
one thousand five hundred dollars ($1 ,500) due and payable on the 1st day of ·
each month thereafter until the next occurrence of one of the events specified
above for another child.
If the child is eighteen years of age and has not graduated from high school,
IT IS ORDERED that Andy I. Weiner's obligation to pay child support to Katherine
F. Weiner shall not terminate but shall continue for as long as the child is enrolled-
1.    under chapter 25 of the Texas Education Code in an accredited
ki         secondary school in a program leading toward a high school diploma or under
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Weiner -Agreed Final Decree of Divorce                      Page 19
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section 130.008 of the Education Code in courses for joint high school and junior
college credit and is complying with the minimum attendance requirements of
subchapter C of chapter 25 of the Education Code or
2.     on a full-time basis in a private secondary school in a program leading
toward a high school diploma and is complying with the minimum attendance
requirements imposed by that school.
Withholding from Earnings
IT IS ORDERED that any employer of Andy I. Weiner shall be ordered to
withhold from earnings for child support from the disposable earnings of Andy I.
Weiner for the support of David A. Weiner, Daniel S. Weiner and Michael H.
Weiner.
IT IS FURTHER ORDERED that all amounts withheld from the disposable
earnings of Andy I. Weiner by the employer and paid in accordance with the order
to that employer shall constitute a credit against the child support obligation.
Payment of the full amount of child support ordered paid by this decree through the
means of withholding from earnings shall discharge the child support obligation.
If the amount withheld from earnings and credited against the child support
obligation is less than 100 percent of the amount ordered to be paid by this decree,
the balance due remains an obligation of Andy I. Weiner, and it is hereby
ORDERED that Andy I. Weiner pay the balance due directly .to the state
Weiner -Agreed Final Decree of Divorce                      Page 20
disbursement unit specified below.
On this date the Court authorized the issuance of an Order/Notice to
Withhold Income for Child Support.
Payment
IT IS ORDERED that all payments shall be made through the state
disbursement unit at Texas Child Support Disbursement Unit, P.O. Box 659791,
San Antonio, Texas 78265-9791, and thereafter promptly remitted to Katherine F.
Weiner for the support of the children.   IT IS ORDERED that each party shall pay,
when due, all fees charged to that party by the state disbursement unit and any
other agency statutorily authorized to charge a fee.
Change of Employment
IT IS FURTHER ORDERED that Andy I. Weiner shall notify this Court and
Katherine F. Weiner by U.S. certified mail, return receipt requested, of any change
of address and of any termination of employment. This notice shall be given no
later than seven days after the change of address or the termination of
employment. This notice or a subsequent notice shall also provide the current
address of Andy I. Weiner and the name and address of his current employer,
whenever that information becomes available.
Clerk's Duties
IT IS ORDERED that, on the request of a prosecuting attorney, the title IV-D
Weiner -Agreed Final Decree of Divorce                    Page 21
agency, the friend of the Court, a domestic relations office, Katherine F. Weiner,
Andy I. Weiner, or an attorney representing Katherine F. Weiner or Andy I. Weiner,
the clerk of this Court shall cause a certified copy of the Order/Notice to Withhold
Income for Child Support to be delivered to any employer.
Suspension of Withholding from Earnings
The Court finds that good cause exists that no order to withhold from
earnings for child support should be delivered to any employer of Andy I. Weiner
as long as no delinquency or other violation of this child support order occurs and
as long as the Office of the Attorney General Child Support Division .is not
providing services to Katherine F. Weiner. For the purpose of this provision, a
delinquency has occurred if Andy I. Weiner has been in arrears for an amount due
for more than thirty days or the amount of the arrearages equals or is greater than
the amount due for a one-month period. If a delinquency or other violation occurs
or if the Office of the Attorney General Child Support Division begins providing
services to Katherine F. Weiner, the clerk shall deliver the order to withhold
earnings as provided above.
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promptly remitted to Katherine F. Weiner for the support of the children.       If a
delinquency or other violation occurs or if the Office of the Attorney General Child
Support Division begins providing services to Katherine F. Weiner, all payments
shall be made in accordance with the order to withhold earnings as provided
above.
Kinkaid School Tuition
IT IS ORDERED that Andy I. Weiner shall pay, as child support, through
graduation from high school, each child's tuition, required fees, required books,
lunches at school and other fees associated with the children's attendance at the
Kinkaid School, as billed directly by the school to Andy I. Weiner.
Health Care
1.      IT IS ORDERED that Katherine F. Weiner and Andy I. Weiner shall
each provide medical support for each child as set out in this order as additional
child support for as long as the Court may order Katherine F. Weiner and Andy I.
Weiner to provide support for the child under sections 154.001 and 154.002 of the
Texas Family Code.          Beginning on the day Katherine F. Weiner and Andy I.
Weiner's actual or potential obligation to support a child under sections 154.001
and 154.002 of the Family Code terminates, IT IS ORDERED that Katherine F.
Weiner and Andy I. Weiner are discharged from the obligations set forth in this
~    medical support order with respect to that child, except for any failure by a parent
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to fully comply with those obligations before that date.
· 2.   Definitions -
"Health Insurance" means insurance coverage that provides basic
health-care services,           including   usual   physician     services,   office   visits,
hospitalization, and laboratory, X-ray, and emergency services, that may be
provided through a health maintenance organization or other private or public
organization, other than medical assistance under chapter 32 of the Texas Human
Resources Code.
"Reasonable cost" means the total cost of health insurance coverage for all
children for which Andy I. Weiner is responsible under a medical support order that
does not exceed 9 percent of Andy I. Weiner 's annual resources, as described by
section 154.062(b) of the Texas Family Code.
"Reasonable and necessary health-care expenses not paid by insurance
and incurred by or on behalf of a child" include, without limitation, any copayments
for office visits or prescription drugs, the yearly deductible, if any, and medical,
surgical, prescription drug, mental health-care services, dental, eye care,
ophthalmological, and orthodontic charges.           These reasonable and necessary
health-care expenses do not include expenses for travel to and from the
health-care provider or for nonprescription medication.
"Furnish" means:
Weiner ·Agreed Final Decree of Divorce                           Page 24
''
a.     to hand deliver the document by a person eighteen years of age
or older either to the recipient or to a person who is eighteen
years of age or older and permanently resides with the
recipient;
b.     to deliver the document to the recipient by certified mail, return
receipt requested, to the recipient's last known mailing or
residence address; or
c.     to deliver the document to the recipient at the recipient's last
known mailing or residence address using any person or entity
whose principal business is that of a courier or deliverer of
papers or documents either within or outside the United States.
3.    Findings on Health Insurance Availability- Having considered the
cost, accessibility, and quality of health insurance coverage available to the
parties, the Court finds:
Health insurance is available or is in effect for the children through Andy I.
Weiner's employment or membership in a union, trade association, or other
organization at a reasonable cost.
IT IS FURTHER FOUND that the following orders regarding health-care
coverage are in the best interest of the children.
4.    Provision of Health-Care Coverage -
Weiner- Agreed Final Decree of Divorce                        Page 25
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As additional child support, through four (4) months past high school
graduation for each child and for so long as child support is payable for a child,
Andy I. Weiner is ORDERED to provide health insurance for each such child with a
deductible of no more than $1 ,000.00 per year, per child, and if it is higher, as child
support, Andy I. Weiner is ORDERED to pay 100% of all deductible amounts to a
point where such deductible amount reaches that level.            For example, if the
deductible for the children is $7,500, Andy I. Weiner shall pay 100% of the fist
$6,500 in uninsured health care expenses of the children.
Beginning on the first day of the first month following the rendition of the
divorce, and pursuant to section 154.183© of the Texas Family Code, IT IS
ORDERED that the reasonable and necessary uninsured medical expenses of the
children be paid as follows:
a.    Andy I. Weiner shall be responsible for payment of 70% of each
child's deductible;
b.   after the deductible has been met, Katherine F. Weiner shall pay for
30% and Andy I. Weiner shall pay for 70% of all uninsured health care expenses
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70% by Andy I. Weiner.
Weiner- Agreed Final Decree of Divorce
..        ''
d.     Unless approved in advance by both parents, any party incurring out
of network expenses, except in the case of a medical emergency, shall pay 100%
of such expense.
Andy I. Weiner is ORDERED to continue to maintain health insurance for
each child who is the subject of this suit that covers basic health-care services,
including usual physician services, office visits, hospitalization, and laboratory,
X-ray, and emergency services.
Andy I. Weiner is ORDERED to maintain such health insurance in full force
and effect on each child who is the subject of this suit as long as child support is
payable for that child.        Andy I. Weiner is ORDERED to convert any group
insurance to individual coverage or obtain other health insurance for each child
within fifteen days of termination of his employment or other disqualification from
the group insurance. Andy I. Weiner is ORDERED to exercise any conversion
options or acquisition of new health insurance in such a manner that the resulting
insurance equals or exceeds that in effect immediately before the change.
Andy I. Weiner is ORDERED to furnish Katherine F. Weiner a true and
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is ORDERED to provide, within three days of receipt by him, to Katherine F:
Weiner any insurance checks, other payments, or explanations of benefits relating
to any medical expenses for the children that Katherine F. Weiner paid or incurred.
Pursuant to section 1504.051 of the Texas Insurance Code, IT IS
ORDERED that if Andy I. Weiner is eligible for dependent health coverage but fails
to apply to obtain coverage for the children, the insurer shall enroll the children on
application of Katherine F. Weiner or others as authorized by law.
The party who incurs a health-care expense on behalf of a child is
ORDERED to submit to the other party all forms, receipts, bills, statements, and
explanations of benefits reflecting the uninsured portion of the health-care
expenses within thirty days after he or she receives them. The nonincurring party
is ORDERED to pay his or her percentage of the uninsured portion of the
health-care expenses either by paying the health-care provider directly or by
reimbursing the incurring party for any advance payment exceeding the incurring
party's percentage of the uninsured portion of the health-care expenses within
thirty days after the nonincurring party receives the forms, receipts, bills,
statements, and explanations of benefits.
These provisions apply to all unreimbursed health-care expenses of any
child who is the subject of this suit that are incurred while child support is payable
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5.      Secondary Coverage- IT IS ORDERED that if a party provides
secondary health insurance coverage for the children, both parties shall cooperate
fully with regard to the handling and filing of claims with the insurance carrier
providing the coverage in order to maximize the benefits available to the children
and to ensure that the party who pays for health-care expenses for the children is
reimbursed for the payment from both carriers to the fullest extent possible.
6.     Compliance with Insurance Company Requirements - Each party is
ORDERED to conform to all requirements imposed by the terms and conditions of
the policy of health insurance covering the children in order to assure maximum
reimbursement or direct payment by the insurance company of the incurred
health-care expense, including but not limited to requirements for advance notice
to any carrier, second opinions, and the like. Each party is ORDERED to attempt
to use "preferred providers," or services within the health maintenance
organization, if applicable; however, this provision shall not apply if emergency
care is required.      Disallowance of the bill by a health insurer shall not excuse the
obligation of either party to make payment; however, if a bill is disallowed or the
benefit reduced because of the failure of a party to follow insurance procedures or
requirements, IT IS ORDERED that the party failing to follow the insurance
procedures or requirements shall be wholly responsible for the increased portion
Weiner - Agreed Final Decree of Divorce                      Page 29
of that bill.
IT IS FURTHER ORDERED that no surgical procedure, other than in an
emergency or one covered by insurance, shall be performed on the child unless
the parent consenting to surgery has first consulted with at least two medical
doctors, both of whom state an opinion that the surgery is medically necessary. IT
IS FURTHER ORDERED that a parent who falls to obtain the required medical
opinions before consent to surgery on the child shall be wholly responsible for all
medical and hospital expenses incurred in connection therewith and not covered
by insurance.
7.       Claims- Except as provided in this paragraph, the party who is not
· carrying the health insurance policy covering the children is ORDERED to furnish
to the party carrying the policy, within thirty days of receiving them, any and all
forms, receipts, bills, and statements reflecting the health-care expenses the party
not carrying the policy incurs. on behalf of the children.   In accordance with section
1204.251 and 1504.055(a) of the Texas Insurance Code, IT IS ORDERED that the
party who is not carrying the health insurance policy covering the children, at that
party's option , may file any claims for health-care expenses directly with the
insurance carrier with and from whom coverage is provided for the benefit of the
children and receive payments directly from the insurance company.         Further, for
the sole purpose of section 1204.251 of the Texas Insurance Code, Katherine F.
Weiner - Agreed Final Decree of Divorce                      Page 30
Weiner is designated the managing conservator or possessory conservator of the
children.
The party who is carrying the health insurance policy covering the children is
ORDERED to submit all forms required by the insurance company for payment or
reimbursement of health-care expenses incurred by either party on behalf of a
child to the insurance carrier within fifteen days of that party's receiving any form,
receipt, bill, or statement reflecting the expenses.
8.     Constructive Trust for Payments Received- IT IS ORDERED that any
insurance payments received by a party from the health insurance carrier as
·reimbursement for health-care expenses incurred by or on behalf of a child shall
belong to the party who paid those expenses.       IT IS FURTHER ORDERED that
the party receiving the insurance payments is designated a constructive trustee to
receive any insurance checks or payments for health-care expenses paid by the
other party, and the party carrying the policy shall endorse and forward the checks
or payments, along with any explanation of benefits received, to the other party
within three days of receiving them.
9.     WARNING - A PARENT ORDERED TO                    PROVIDE      HEALTH
INSURANCE OR TO PAY THE OTHER PARENT ADDITIONAL CHILD
SUPPORT FOR THE COST OF HEALTH INSURANCE WHO FAILS TO DO SO
IS LIABLE FOR NECESSARY MEDICAL EXPENSES OF THE CHILDREN,
Weiner- Agreed Final Decree of Divorce                     Page 31
..
WITHOUT REGARD TO WHETHER THE EXPENSES WOULD HAVE BEEN
PAID IF HEALTH INSURANCE HAD BEEN PROVIDED, AND FOR THE COST
OF HEALTH INSURANCE PREMIUMS OR CONTRIBUTIONS, IF ANY, PAID ON
BEHALF OF THE CHILDREN.
Miscellaneous Child Support Provisions
Support as Obligation of Estate
IT IS ORDERED that the provisions for child support in this decree shall be
an obligation of the estate of Andy I. Weiner and shall not terminate on the death of
Andy I. Weiner.        Payments received for the benefit of the children, including
payments from the Social Security Administration, Department of Veterans Affairs
or other governmental agency or life insurance proceeds, annuity payments, trust
distributions, or retirement survivor benefits, shall be a credit against this
obligation. Any remaining balance of the child support is an obligation of Andy I.
Weiner's estate.
Termination of Orders on Remarriage of Parties but Not on Death of Obligee
The provisions of this decree relating to current child support terminate on
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'
AVID ABRAHAM WEINER                               §
1994 TRUST                                          §           ~SCOUNT~TEXAS
AFFIDAVITOFKATHERINEF. WARREN
Before me, the undersigned notary, on this ·day personally appeared KATHERINE F.
WARREN, the affiant, whose identity is known to me. After I administered an oath, affiant
iestified as follows:·
1. My name is Katherine F. Warren. I am over eighteen years of age, of ~ound mind, and
capable of making this affidavit. The facts stated in this affidavit are within my personal
knowledge and are true and correct.
2. On December 13, 1994, Andy I. Weiner and I created the DAVID ABRAHAM WEJNER
1994 TRUST (the "Trust") for the benefit of our son, David W. Warren, formerly known
as David A. Weiner. Andy I. Weiner and I are the trustors and co-trustees of the Ttust.
3. The purpose of the Trust is to provide for the best interests of our son, David. A primary
purpose of the Trust is to fund his educational costs. I believe that it is in David's best
. interest to receive a quality education.
4. David is enrolled as a freshman at Rice University in Houston, Texas.             He began
attending classes in August 2013.
5. Andy I. Weiner and I were granted a divorce on March 29, 2012. As part of the divorce
decree, the trust was to continue as provided under the trust agreement. Under the trust
agreement, Andy I. Weiner and I are required to act jointly as co-trustees.
1
6. Although David is the primary beneficiary of the Trust, he applied for fmancial aid with
Rice University prior to the start of the Fall 2013 semester. David was denied fmancial
aid because of the Trust. The financial aid department of Rice University explained that
where students are the beneficiaries of trusts like the DAVID ABRAHAM WEINER
1994 TRUST, that the school assumes that the trust funds are intended for the payment of
college expenses.
7. David received a tuition bill from Rice University in July 2013. I wrote a check from the
Trust's Fidelity account for $20,000 or around August 1, 2013. The check was returned
to Rice University unpaid because Andy I. Weiner requested that Fidelity not honor the
check.
8. After the check was returned to Rice University unpaid, David received a letter from the
university advising him that his tuition payment was overdue. I requested that Fidelity
wire $20,000 to David, with which he paid his tuition. It took approximately six weeks
for the tuition payment to be credited to David's account with Rice University.
9. I believe that it is detrimental to the best interests of David for Andy I. Weiner and I to
continue acting as co-trustees of the Trust. Our disagreements regarding distributions of
David's behalf could seriously inhibit his ability to receive a wonderful educatio!J .
. 10. David is an intelligent adult and is capable of using the Trust assets for his best interests.
I believe that David has shown maturity beyond most otber college students his age. It
would be in his best interests to be given the Tlust assets for his college tuition, rather
than to face the uncetiaintyinherent in the current situation.
' 2
Sworn to and subscribed before me by Katherine F. Warren on   q ·3 ()   _ _ 2013.
ANGIE K BYRNES
My Commission Expires
Seplembor 16. 2015
3
HARRIS COUNTY PROBATE COQRT NUMBER FOUR
FAX (713) 368-7111
PI-lONE (713) 368-6767
FAX TRANSMISSION
To:       Sarah Patel Pacheco
Via facsimile 713-658-1921
To:       Carol Cantrell
Via facsimile 713-333-0550
Re:      In Re: Michael Henry Weiner 2000 Trust; Cause No. 425578; In Probate
Court No. 4; Harris County, Texas
In Re: Daniel Stephen Weiner 1996 Trust; Cause No. 425576; In Probate
Court No. 4; Harris County, Texas
Date:    11-21-13
Pages:   5
Note:    See attached signed Orders.
EXHIBIT
exhibitsticker.com
TAB I
NO. 425,578
INRE:                                              §                   IN PROBATE COURT
§
MICHAEL HENRY WETNER                               §                   NUMBER FOUR (4) OF
§
:2000 TRUST                                        §                   HARRIS COUNTY, TEXAS
ORDER ON PLEA TO THE .JURISDICTION
On this day, the Court considered the Plea to the Jurisdiction, filed by Defenda11t Andy
Weiner, co-trustee ofthc Michac.l Henry Weiner 2000 Trust, and after considering the pleadings,
evidence ~nd arguments of counse.l, the Court fi.nds that the Plea to the Jurisdiction should be
GRANTED in its entirety. It is thereJllre,
ORDERED that the Plea to the Jurisdiction is GRANTED in its entirety. It is fu.rther,
ORDERED that, due to jurisdictional defects, this ca~e is dismissed.
Signed this --~<-=-1_day of _}')olfCmb<.1=-_,, 2013.
``--"'"'
JUDGE PRESIDING
077)44/flOIIOO I
376- 9S<19Wiv1
APPROVED AS TO FORM:
CRAIN, CATON & .TAMES, P.C.
By:
-=-sA~R-:-A--:-.H-:-1' ATEL PACT-IECO
(TBA #00788164)
KATHLEEN TANNER BEDU7.E
(TBA #24052205)
1401 McKinney, Suite 1700
Houston, Texas 77010
(713) 658-2323
Facsimile (713) 658-1921
ATTORNEYS FOR ANDY WEINER
2
017)44/000001
376 • 9;4996vl
NO. 425,576
IN RE:                                             §                   TN PROBATE COURT
§
DANIEL STEPHEN WEINER                              §                   NUMBER FOUR ( 4) OF
§
1996 TRUST                                         §                   HARRIS COUNTY, TEXAS
ORDER ON PLEA TO THE .JURlSOICTION
On this day, the Court considered the Plea to the .lmisdietion, filed by Def273 S.W.3d 152, 155 (Tex. 2008); Law Offices of
Windle Turley, P.C. v. Ghiasinejad, 
109 S.W.3d 68, 70 (Tex. App.—Fort Worth 2003, no
pet.).} A party may intervene in a suit if it could have brought all or part of the same suit in
its own name. {In re Union 
Carbide, 273 S.W.3d at 155; Guar. Fed. Sav. Bank v. Horseshoe
Operating Co., 
793 S.W.2d 652, 657 (Tex. 1990); E & B Carpet Mills v. State, 
776 S.W.2d
286, 290 (Tex. App.—Austin 1989, writ dism’d).}
FACTS
17. Intervenor Daniel S. Weiner is the beneficiary of the Daniel Steven Weiner 1996
Trust (Daniel’s Trust), an irrevocable inter vivos trust created by Respondents (trustors)
Warren and Weiner on March 20, 1996. A true and correct copy of the trust agreement is
attached hereto as “Exhibit A” and is incorporated for all purposes.
18.   Respondents Andy I. Weiner and Katherine R. Weiner, are Trustees of the Trust.
Respondent Weiner’s sister Bayle Weiner Drubel is successor trustee in the event that both
Respondents Weiner and Warren cease to serve.
19. Daniel S. Weiner was born on March 18, 1996 and is an adult.
20. The primary purpose of Daniel’s Trust is to pay for Daniel’s education. He is presently
a senior student at Kinkaid High School in Houston, Texas. He has accepted enrollment at
Rice University in Houston, Texas to attend classes in the fall of 2014.
21. Daniel’s Trust owns marketable securities worth approximately $124,983 as of January
31, 2014. The Trust assets came from various sources including Daniel’s own income tax
refunds, birthday and Hanukkah gifts, and checks payable to the Custodian of his Uniform
Gifts to Minors Account. Respondent Weiner “endorsed” these checks over to Daniel’s Trust
without Daniel’s knowledge.
22. The Trustee is authorized to make discretionary distributions to the beneficiary as are
in the beneficiary's best interest. The beneficiary may withdraw the entire Trust corpus upon
reaching age 21.
23. On March 25, 2009, Respondent Andy I. Weiner liquidated the entire portfolio of
Daniel’s Trust and incurred a capital loss of $30,586.
24. On April 9, 2009 Respondent Weiner borrowed $90,959.38 from Daniel’s Trust,
leaving $1,000 in the trust. On the same day Respondent Weiner borrowed $126,641.40 from
David’s Trust and $82,474.40 from his other son Michael Weiner’s trust, leaving only
$1,000 in each of those trusts. In all, Respondent borrowed $300,075.18 from his sons’ trusts
for his own personal use and benefit while he was trustee.
5
25. On December 19, 2013, Daniel S. Weiner demanded an accounting of his trust under
Texas Trust Code § 113.151-152. Respondent Weiner has ignored his demand.
26. In 1999, Daniel’s Trust purchased 34,000 shares of Wieners Stores, Inc. stock, in
addition to the 18,000 shares it already owned. On August 31, 1999, Weiners Stores, Inc.
accounted for over 65 percent of Daniel’s Trust’s portfolio.
27. Respondent Weiner was an Executive Vice President of Weiner Stores, Inc. until 1995
when it declared Chapter 11 bankruptcy. Weiners Stores emerged from bankruptcy on
August 26, 1997 and filed for Chapter 11 bankruptcy again on October 16, 2000.
28. On December 6, 2001, Daniel’s Trust sold 52,000 shares of Wieners Stores, Inc. for
2/10ths of a cent per share for a total loss of $28,762.44.
29. From July 1, 1999 to March 25, 2009 Daniel’s Trust invested in only five to eight
individual stocks in a portfolio worth less than $90,000.
30. From March 26, 2009 to September 11, 2012 Daniel’s Trust’s account at Fidelity
consisted entirely of cash. During this time the trust earned $99.13 of interest income, while
the Dow Jones Industrial Average increased by 72 percent, the S&P 500 Index increased by
79 percent, and the NASDAQ Composite increased by over 203 percent.
31. Daniel S. Weiner did not discover Respondent Weiner’s borrowing or failure to
prudently invest his Trust funds until discovery began in David Warren’s case. Daniel
Weiner was a minor when the borrowings and other breaches occurred. The period of
limitations does not begin to run against a person entitled to bring an action for breach of
fiduciary duty while the person is under 18 years of age. {Tex. Civ. Prac. & Rem. Code §§
16.001, 16.004.} Daniel S. Weiner became 18 on March 18, 2014 and is thus within the
limitations period for bringing this action.
CAUSES OF ACTION
32. Daniel S. Weiner incorporates by reference each and every allegation contained in the
preceding paragraphs as if fully set forth herein.
33. There is a real and justiciable controversy between Daniel S. Weiner and Respondent
Andy I. Weiner concerning Respondent Weiner’s actions as trustee of Daniel’s Trust.
34. Respondent Weiner has materially breached his fiduciary duties in the following
manner:
a.         By borrowing substantially all of the assets of Daniel’s Trust for his own
personal use and benefit on April 9, 2009 without interest or collateral in violation of
Paragraph E-3(a) of the Trust Agreement and the Texas Trust Code § 113.052, both of
which expressly forbid borrowing by the trustee;
b.         By commingling substantially all of Daniel’s Trust assets with Respondent
Weiner's own personal funds in violation of the duty of loyalty under Texas Trust Code §
117.007, the duty not to profit by self-dealing with the trust under Texas Trust Code §
114.0001(a), and the common law duty to segregate trust assets;
c.         By investing over 65 percent of Daniel’s Trust assets in Weiner Stores, Inc. in
1999, resulting in a material loss to the trust in violation of the prudent investor rule under
Texas Trust Code § 117.004;
d.         By failing to properly diversify Daniel’s Trust property resulting in a material
loss to the trust in violation of the duty to diversify under Texas Trust Code § 117.005;
e.         By failing to prudently invest Daniel’s Trust property resulting in a material
loss to the trust in violation of the prudent investor rule under Texas Trust Code § 117.004;
7
f.         By failing to render an accounting despite written demand by Daniel S.
Weiner on December 19, 2013 in violation of the duty to account under Texas Trust Code
§§ 113.151 and 113.152.
Daniel and his trust have suffered substantial economic damages as a direct result of
Respondent Weiner’s material breaches of fiduciary duty enumerated above.
35. Daniel Weiner further claims that Respondent Weiner’s sister, Bayle Weiner Drubel,
should not be named as successor trustee in the event Respondents are unable to serve
because she has a material conflict of interest with respect to this Trust due to her
relationship with Respondent Weiner. As a result of her conflict, Ms. Drubel would not be
capable of properly performing her fiduciary duties. {Kappus v. Kappus, 
284 S.W.3d 831
(Tex. 2009)}.
RELIEF REQUESTED
WHEREFORE, Daniel S. Weiner requests:
36. Judgment against Respondent Andy I. Weiner for a sum within the jurisdictional limits
of the Court.
37. Monetary relief of over $200,000 but not more than $1,000,000.
38. Removal of Respondent Weiner as Trustee of the Daniel Steven Weiner 1996 Trust
pursuant to Texas Trust Code §§ 114.008(a)(7) and 113.082;
39. That Respondent Weiner be ordered to pay money or restore property to Daniel’s Trust
equal to the trust’s lost profits caused by Respondent Weiner's borrowing, imprudent
investing, and other breaches of fiduciary duty pursuant to Texas Trust Code §
114.008(a)(3);
40. That Respondent Weiner be ordered to disgorge and pay to Daniel’s Trust any profit
he has made through his personal use of Daniel’s Trust funds under Texas Trust Code §
114.0001(a).
41. That Respondent Weiner be ordered to pay Daniel’s Trust punitive damages in excess
of the statutory cap due to Respondent Weiner's gross negligence and intentional and
conscious indifference to the rights of the beneficiaries under Texas Civ. Prac. & Rem. Code
§ 41.008.
42. That Daniel S. Weiner be awarded reasonable and necessary attorney fees, costs, and
expenses through trial and all appeals under applicable Texas law, including but not limited
to Texas Civ. Prac. & Rem. Code § 38.001 and Texas Trust Code §§ 114.064 and
113.151(a).
43. That Respondent Weiner be ordered to submit an accounting that meets the
requirements of Texas Trust Code § 113.152 and personally bear the cost of the accounting
pursuant to Texas Trust Code § 113.151.
44. That Daniel’s Trust be modified pursuant to Texas Trust Code § 112.054(a)(3) to
appoint Daniel Weiner as co-Trustee with Respondent Katherine Warren and remove Bayle
Weiner Drubel as the successor trustee in the event that Ms. Warren ceases to serve.
45. That Daniel S. Weiner and his trust be awarded prejudgment and postjudgment interest
as provided by law.
9
PRAYER
WHEREFORE PREMISES CONSIDERED, Daniel S. Weiner prays that the Court grant the
requested relief and such further relief to which Daniel S. Weiner and his trust are justly
entitled.
By:_/s/ Carol A. Cantrell
Carol A. Cantrell, Attorney for Daniel S. Weiner
Texas Bar No.: 24043592
Meredith N. McIver
Texas Bar No.: 24078974
3700 Buffalo Speedway, Suite 520
Houston, TX 77098
Phone: 713-333-0555
Fax: 713-333-0550
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been duly served
by electronic service to counsel of record indicated below on this 22st day of April 2014.
Sarah Patel Pacheco
Kathleen Tanner Beduze
Crain Caton & James
Five Houston Center,
1401 McKinney, 17th Floor
Houston, TX 77010
spacheco@craincaton.com
713-658-1921 (facsimile)
ATTORNEY FOR RESPONDENT ANDY I. WEINER
Thomas R. Conner
Conner & Lindamood, P.C.
1221 Lamar, Suite 1010
Houston, TX 77010
tom@lawcl.com
713-654-8115 (facsimile)
ATTORNEY FOR RESPONDENT KATHERINE R. WARREN
By:_/s/ Carol A. Cantrell
DANIEL STEVEN WEINER 1996 TRUST
By this trust agreement, Andy I . Weiner and Katherine Friedman
Weiner, husband and wife, both of Harris County, Texas, as
"trusters," establish the Daniel steven Weiner 1996 Trust for the
benefit of their son, Daniel steven Weiner ("Daniel"), born
March 11, 1996.   Trusters grant, assign and deliver to Andy I.
Weiner and Katherine Friedman Weiner, both of Harris County, Texas,
as "trustees," the property described in Attachment A. Attachment
A, which is captioned "Initial Contributions to the Daniel Steven
Weiner 1996 Trust," is incorporated by reference as a part of this
trust agreement.
This trust agreement and the trusts established by it are
irrevocable.   No person shall have the right to revoke or amend
this trust agreement or any of its provisions. However, property
acceptable to the trustee may be added to any trust from time to
time in the future by trusters or by any other person (including
additions pursuant to the provisions of the last will of any
person).
All references to "trustee" shall refer to the person or
persons then acting as such.
A.    PRIMARY TRUST
A-1.   Distributions . The income of the trust may be accumulated
and retained, in whole or in part, or the trustee may distribute to
Daniel, from time to time, so much or all of the trust estate as,
in the trustee's discretion, is in Daniel's best interests.
A-2.   Termination.  Daniel may withdraw any part or all of the
trust estate within 60 days after he becomes age 21, and may
thereby terminate the trust as to the part withdrawn.    Exercise of
this withdrawal right shall be by one or more written instruments
delivered to the trustee within the 60-day period.    If or to the
extent that Daniel does not exercise this withdrawal right, the
trust shall continue until Daniel becomes age 30 or dies before
that age, at which time the trust estate shall be distributed:
(a)    To Daniel.
(b) If Daniel is not then living, to such one or more
persons, corporations or organizations (including Daniel's estate) ,
as Daniel appoints by a will which specifically refers to this
power of appointment.    If or to the extent that Daniel does not
effectively exercise this power of appointment, the trust estate
shall be distributed:
(1)    To Daniel's descendants.
(2)  If none of Daniel's descendants is then living, to
trustors' descendants.
EXHIBIT A
( 3} If none of trusters'       descendants   is   then living,   to
trusters' heirs.
A-3. Payment of Taxes.     If Daniel's will contains no contrary
directions, the trustee shall pay from the trust estate the entire
increment in taxes payable by reason of Daniel's death (including
any interest or penalties thereon} to the extent (if any} that the
total of such taxes is greater than would have been imposed if no
portion of the trust estate were taken into account in determining
such taxes.
B.    CONTINGENT TRUSTS
B-1. Trusts Established. Any portion of a trust estate upon the
trusts termination (other than a portion withdrawn by Daniel
pursuant to Paragraph A-2} which would be distributable to a
beneficiary who is under age 30 or to a beneficiary who is under a
legal disability instead shall be distributed to the trustee of a
Contingent Trust (unless otherwise directed by the valid exercise
of a power of appointment} .       Each beneficiary's portion so
distributed shall be held and administered as the initial trust
estate of a separate trust for the beneficiary.      However, if a
Contingent Trust is already in existence for that beneficiary, any
additional portion to be distributed to the trustee of a Contingent
Trust for the beneficiary shall be added to the trust estate of the
existing contingent Trust.
B-2. Distributions.      The income of each Contingent Trust may be
accumulated and retained, in whole or in part, or the trustee may
distribute to the beneficiary for whom the trust was established,
from time to time, so much or all of the trust estate as, in the
trustee's discretion, is in the beneficiary's best interests.
B-3. Termination. Each Contingent Trust shall terminate when the
beneficiary for whom the trust was established has become age 30
and is under no legal disability or upon the beneficiary's earlier
death. Upon termination, the trust estate shall be distributed:
(a)    To the beneficiary.
(b)   If the beneficiary is not then living, to such one or
more persons, corporations or organizations as the beneficiary
appoints by a will which specifically refers to this power of
appointment.    If none of the beneficiary's descendants is then
living, this power may not be exercised in favor of the
benefici ary, the beneficiary's estate, the beneficiary's creditors
or the creditors of the beneficiary's estate. If or to the extent
that the beneficiary does not effectively exercise this power of
appointment, the trust estate shall be distributed:
(1)   To the beneficiary's descendants.
-2-
EXHIBIT A
(2) If none of the beneficiary's descendants is then living,
to the descendants of the beneficiary's nearest ancestor who was
one of trustors• descendants and who has descendants then living.
(3)  If none of these persons is then living, to trusters,
descendants.
( 4) If none of trustors • descendants    is then   living,   to
trustors• heirs.
C.   DISTRIBUTIONS
c-1. Distributions to or for Beneficiaries. During the term of a
trust, any distribution to be made to a beneficiary from the trust
may be made (i) to the beneficiary, {ii) if the beneficiary is
under a legal disability or if the trustee determines that the
beneficiary is unable to properly manage his affairs, to a person
furnishing support, maintenance or education for the beneficiary or
with whom the beneficiary is residing, for expenditure on the
beneficiary's behalf, or (iii) to a custodian for a minor
beneficiary, as selected by the trustee, under the Uniform Gifts to
Minors Act of any state. Alternatively, the trustee may otherwise
apply all or a part of the distribution for the beneficiary • s
benefit. However, no such distribution shall be made to a trustor,
to any spouse of a trustor, or in any manner that discharges a
legal obligation {including an obligation of support) of a trustor
or any spouse of a trustor. Any distribution under this paragraph
shall be a full discharge of the trustee with respect thereto.
c-2.  Best Interests of Beneficiary.    In making distributions in
the "best interests" of a beneficiary, the trustee may consider the
age of the beneficiary, the costs of the beneficiary's support,
maintenance, education and comfort without regard to any other
resources available to the beneficiary for these purposes, the
effect of any distribution upon the income and transfer tax
liability of the beneficiary or of the trust, and any other factors
deemed relevant by the trustee.
D.   OFFICE OF TRUSTEE
0-1.   Successor Trustee, Co-Trustee.  The following provisions
shall apply to each separate trust established under this trust
agreement:
(a) Successor Trustee.  Should Andy I. Weiner or Katherine
Friedman Weiner cease to act as trustee, for any reason, the one
remaining shall continue to act as trustee.   Should both Andy I.
Weiner and Katherine Friedman Weiner cease to act as trustees, for
any reason, trustors appoint Bayle Weiner Drubel as successor
trustee.
-3-
EXHIBIT A
(b) Appointment of Successor Trustee by Trustee . At any time
after qualifying as trustee, any trustee may appoint a successor
trustee to act in his place, either immediately or in the future
upon any stated contingency, and may thereby supplement the
provisions of subparagraph (a).
(c) Appointment of Successor Trustee by Beneficiaries. If at
any time there is no trustee acting and none has been appointed, a
majority of the beneficiaries (acting through the beneficiary's
natural or legal guardian or legal representative, in the case of
a beneficiary under a legal disability) who might then be entitled
to receive a distribution from the trust estate shall appoint a
successor trustee.
(d)   Appointment of Co-Trustee.   The     trustee    (acting
unanimously if more than one) may appoint one or more co-trustees.
(e) Who May Be Appointed. A successor trustee or co-trustee
may be any individual, bank or trust company and may be domiciled
anywhere.
(f) Procedure for Appointment. Appointment shall be made by
written instrument filed with the trust records.          Any such
appointment may be changed or revoked prior to the date it becomes
effective.   Any such appointment may be limited in any manner
deemed advisable by the person making the appointment, including,
for example, restricting the power over distributions as necessary
to avoid the imposition of any tax upon the trust, the appointee or
the appointee's estate.
D-2. Resignation of Trustee. A trustee may resign from a trust
without the necessity of any court proceeding upon meeting these
conditions:
(a) Notice. At least 30 days' written notice       (if not waived)
shall be given to each beneficiary who might then       be entitled to
receive a distribution from the trust estate. If a      beneficiary is
under a legal disability, notice shall be given to       (or waived by)
the beneficiary's natural or legal guardian.
(b)   Accounting.   If and to the extent required by the
successor trustee, an accounting for the administration of the
trust shall be given to the successor trustee.      The successor
trustee shall be fully protected in relying upon such accounting.
D-3.   Rights and Liabilities.
(a) Bond Not Required. No bond or other security shall be
required of any trustee.
(b)   Liabilities.   This agreement shall always be construed in
-4-
EXHIBIT A
favor of the validity of any act by or omission of any trustee. A
trustee shall not be liable for any act or omission except in the
case of gross negligence, bad faith or fraud.     Specifically, in
assessing the propriety of any investment of a trust estate, the
overall performance of the entire trust estate shall be taken into
account.
(c)  Compensation. Each trustee shall be entitled to receive
reasonable compensation for services actually rendered to a trust.
E.   ADMINISTRATION
E-1. General Powers of Trustee. To carry out the trust purposes
but subject to any limitations stated elsewhere herein, the trustee
of each trust shall have the following powers, which may be
exercised free from court supervision, and which shall exist until
all of the trust estate has been distributed:
(a)  Trust Estate. The trustee may invest and reinvest all or
any part of the trust estate in property of any description and may
retain as a part of the trust estate any property acquired at any
time and in any manner.   Specifically, and without regard to the
provisions of any applicable state law, the trustee may retain, or
invest and reinvest in, property unproductive of income, shares of
open or closed end investment trusts or companies, wasting assets,
and any other property, regardless of location and without regard
to any requirement of diversification as to kind or amount.
(b)   Business Interests. The trustee may continue operation
of any business entity, in any business form, with all or any part
of the trust estate, and may reorganize or liquidate any such
entity at any time.
(c) Transfers, Loans. The trustee may lease, sell, transfer,
or encumber in any manner (including with purchase money mortgages)
all or any part of the trust estate, and may loan or borrow money
in any manner (including by joint and several obligations) with or
without security. Subject to the provisions of Paragraph E-3(a),
the trustee may purchase assets from the estate of a trustor and
may loan funds to the estate of a trustor at such rate of interest
and with such security as the trustee determines to be in the best
interests of the current beneficiaries of the trust.
(d) Dealings With Related Parties. The trustee may deal with
any person or entity regardless of any relationship or identity of
any trustee to or with that person or entity and may hold or invest
all or any part of the trust estate in common or undivided
interests with that person or entity.
(e) Agents, Employees. The trustee may employ and compensate
agents and other employees ~nd may delegate to them any and all
discretions and powers.
-5-
EXHIBIT A
(f) Partitions, Distributions. The trustee may partition all
or any part of any interest, may pay and receive such moneys or
properties as may be necessary to equalize differences, and in so
doing (i) may make any distribution of all or any part of the trust
estate in any manner (including composing shares differently) and
(ii) may evaluate any property, which valuation shall be binding on
all beneficiaries.
(g)   Claims, Controversies.    The trustee may maintain and
defend any claim or controversy by or against the trust without the
joinder or consent of any beneficiary.
(h)    Additional Powers. In addition, the trustee shall have
all rights, privileges and powers now or hereafter granted to
trustees in Texas, including those granted under the Texas Trust
Code.     Any subsequent legislation or regulation expanding or
limiting the rights, privileges and powers granted a trustee shall
apply to all trusts hereunder unless the trustee elects not to have
such legislation or regulation apply to a particular trust by a
written instrument filed with the trust records.       However, the
provisions made for the various beneficiaries under this trust
agreement are exclusive. Any statute that purports to enlarge the
class of beneficiaries to whom distributions may be made or the
purposes for which distributions may be made shall not apply to any
trust.    All trust powers may be exercised upon such terms as the
trustee deems advisable and may affect trust properties for any
length of time regardless of the duration of the trust. Generally,
and subject only to the terms of this trust agreement, the trustee
shall hold, manage, control, use, invest, reinvest, and dispose of
the trust estate to the same extent as if the trustee were the fee
simple owner thereof.
E-2.     Principal and Income Determinations.      The receipts,
disbursements and reserves of each trust may be allocated, on a
cash or accrual basis, between principal and income in the
trustee's discretion without regard to the provisions of any
statute.    To the extent the trustee does not exercise this
discretionary power, the provisions of the Texas Trust Code shall
control.
E-3.   Restrictions on the Exercise of Certain Powers.
(a)  Dealings with Trust Estate. No power granted the trustee
shall be construed to enable any person to purchase, exchange, or
otherwise deal with or dispose of any trust estate for less than an
adequate consideration in money or money's worth or to authorize
loans to any person without adequate interest.      No part of any
trust estate may be (i) loaned to a trustor or to any spouse of a
trustor or (ii) applied to the payment of premiums on policies of
insurance on the life of a trustor or on the life of any spouse of
a trustor.
-6-
EXHIBIT A
(b)  Distributions to or for Trustee. Any power to make
discretionary distributions to or for the benefit of a person who
is serving as trustee of a trust (including distributions to the
person's spouse and distributions in discharge of any legal
obligation of the person) shall be exercisable solely by the
trustee or trustees other than that person. If no other trustee is
then serving, such power shall not be exercisable.
E-4. Release and Delegations of Powers. Any power granted to a
trustee may be released, in whole or in part, temporarily or
permanently. Except as provided in Paragraph E-3, any such power
may be delegated, in whole or in part, temporarily or permanently,
to any other trustee then acting. A release or delegation shall be
by written instrument filed with the records of each trust to which
the release or delegation applies.
F.   DEFINITIONS AND GENERAL PROVISIONS
F-1. Trust Estate.   "Trust estate" means all assets, however and
whenever acquired (including income and accumulated income), which
may belong to a trust at any given time.
F-2. Descendants. "Descendants" means the legitimate children of
the person or persons designated and the legitimate lineal
descendants of such children, and includes any person adopted
before becoming age 18 and the adopted person's descendants.      A
posthumous child shall be considered as living at the death of his
parent. Whenever a distribution is to be made to the descendants
of any person, the property to be distributed shall be divided into
as many equal shares as there are living children of the person and
deceased children of the person who left descendants who are then
living.  Each living child shall take one share and the share of
each deceased child shall be divided among his then living
descendants in the same manner.   "Trusters' descendants" includes
only those persons descended from both trustors.
F-3.   Heirs.   Any distribution to be made to the "heirs" of a
person shall be made to the individuals who would have inherited
the person's personal property if the person had died intestate at
the time the distribution is to be made, domiciled in Texas and not
married, under the laws of Texas in force on the effective date of
this trust agreement, with the shares of taking determined by those
laws. However, both trusters and any spouse of a trustor shall be
deemed to have died prior to the time that any such distribution is
to be made. A distribution to "trustors' heirs" shall be made to
the heirs of Andy I. Weiner.
F-4. Internal Revenue Code.    "Internal Revenue Code" means the
Internal Revenue Code of 1986, as amended, or corresponding
provisions of any subsequent federal tax laws.
-7-
EXHIBIT A
F-5. Other Terms. The use of any gender includes the other
genders, and the use of either the singular or the plural includes
the other.
F-6. Spendthrift Provision. No beneficiary shall have the power
to anticipate, encumber, or transfer his interest in any trust
estate in any manner. No part of any trust estate shall be liable
for or charged with any debts, contracts, liabilities or torts of
a beneficiary or subject to seizure or other process by any
creditor of a beneficiary.    Nothing in this paragraph shall be
construed to limit the otherwise valid exercise of a power of
appointment or right of withdrawal given by this trust agreement.
F-7. Texas Law Applies. The situs of the trusts established under
this trust agreement is Texas.     Wherever possible, the laws of
Texas shall apply to the construction, administration and validity
of each trust.
F-8. Maximum Term of Trusts. No trust shall continue for a period
longer than 21 years after the death of the last to die of trusters
and all of trusters' descendants who are living on the effective
date of this trust agreement. Any trust still in force at the end
of such period shall terminate, and the trust estate shall be
distributed to the beneficiary for whom the trust was established.
F-9.   Powers of Appointment Exercisable by Beneficiaries.       In
exercising a power of appointment given to a beneficiary by this
trust agreement, the beneficiary may appoint the property subject
to the power outright to the appointee, in trust, or to a custodian
for the appointee under the Uniform Gifts to Minors Act of any
state. If the beneficiary appoints to a custodian, he may select
the custodian. If the beneficiary appoints in trust, he may select
the trustee or trustees, may establish such administrative terms
for the trust as he deems appropriate, and may impose lawful
spendthrift restrictions.   He may give the trustee discretionary
powers over the income and principal, and may create a trust that
has several permissible distributees. He may create life interests
or other limited interests in some appointees with future interests
in favor of other appointees, may appoint different types of
interests among the appointees, and may create new powers of
appointment in a trustee or trustees or in any appointee. He may
impose lawful conditions on an appointment and,, in general, may
appoint to or among the appointees in any lawful manner.
In determining whether, in what manner and to what extent a
testamentary power of appointment has been exercised by a
beneficiary, the trustee may act in reliance upon a court order
admitting an instrument to probate as the beneficiary's last will
or an order finding that the beneficiary died intestate. Unless
within six months after the beneficiary's death the trustee has
actual notice of the existence of proceedings to probate a will of
the beneficiary, the trustee shall assume that the beneficiary died
-8-
intestate. The foregoing provisions are intended to expedite the
prompt and efficient administration of the trust and to protect the
trustee from any action taken or distribution made in accordance
with these provisions.   Nothing in this paragraph shall limit or
qualify any power of appointment given by this trust agreement or
any right which an appointee or taker in default of appointment may
have against any person receiving a distribution from the trustee
irrespective of the place of probate or of the time of discovery of
a will exercising the power or any other action taken in the
beneficiary's estate.
G.   ACCEPTANCE BY TRUSTEE
By signing this trust agreement, the trustee (i) accepts these
trusts and all of the rights, powers and duties attached to the
office of trustee as provided herein, (ii) agrees to serve as
trustee of the Daniel Steven Weiner 1996 Trust and of any
Contingent Trusts which may be established under this trust
agreement, (iii) acknowledges receipt of the property described in
Attachment A, and (iv) agrees to hold and administer each trust
estate in accordance with the terms of this trust agreement.
This trust agreement is executed effective as of the 20th day
of March, 1996.
Andy I. Weiner, Trustor and
Trustee
Katherine Friedman Weiner,
Trustor and Trustee
-9-
EXHIBIT A
ATTACHMENT A: INITIAL CONTRIBUTIONS
TO THE DANIEL STEVEN WEINER 1996 TRUST
$1.00
Andy I. Weiner, Trustor and
Trustee
Katherine Friedman Weiner,
Trustor and Trustee
3559:painsc\0157136
-10-
EXHIBIT A
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EXHIBIT A
FILED
12/1/2014 12:00:00 AM
Stan Stanart
County Clerk
DM                                                          PROBATE COURT 4                           Harris County
No. 425,576-401
IN RE:                               §               IN THE PROBATE COURT
§
DANIEL STEVEN WEINER                 §               NO. 4
§
1996 TRUST                           §               HARRIS COUNTY, TEXAS
1 PER IN
ORIGINAL PETITION
12-1-2014
NOW COMES Daniel W. Warren (Daniel), Petitioner and Beneficiary of the Daniel Steven
Weiner 1996 Trust, and files this Original Petition pursuant to the Court’s Order (attached
“Exhibit A”) granting his Motion to Sever his causes of action from Cause No. 425,577, In Re
David Abraham Weiner 1996 Trust. Petitioner seeks removal of Andy I. Weiner as Trustee of
the Daniel Steven Weiner 1996 Trust and damages for breach of fiduciary duty.
PARTIES
1.    Daniel W. Warren, Petitioner, is an individual and Beneficiary of the Daniel Steven
Weiner 1996 Trust (Daniel’s Trust). Daniel W. Warren resides in Harris County, Texas at
1226 Muirfield, Houston, TX 77055. The last three digits of his driver’s license number are
996. The last three digits of his Social Security number are 039.
2.    Andy I. Weiner, Respondent, is an individual acting as trustee of Daniel’s Trust. He
appeared and answered as Respondent in Cause No. 425,577, from which this case was
severed. Mr. Weiner currently resides at 111 Post Oak Blvd., Apartment 452, Houston,
Texas 77056. He can be served through his attorney of record, Sarah Patel-Pacheco, Crain
Caton & James, 1401 McKinney, 17th Floor, Houston, Texas 77010.
3. Katherine R. Warren, is an individual acting as trustee of Daniel’s Trust. She appeared and
answered as a Respondent and Cross-Defendant in Cause No. 425,577 from which this case
was severed. Petitioner released her of all liability in connection with her trusteeship
EXHIBIT
exhibitsticker.com
1
TAB L
pursuant to Texas Property Code § 114.005 and on August 7, 2014, filed a Notice of Nonsuit
against Ms. Warren in Cause No. 425,577, which applies to this case in the same manner as
if it had been filed under this Cause No. 425,576-401.
DISCOVERY CONTROL PLAN
4.   This case is subject to the discovery control plan and deadlines set out in the Agreed
Docket Control Order dated August 27, 2014 relating to Cause No. 425,577.
VENUE
5.   Venue of this proceeding is proper in this Court pursuant to Texas Property Code §
115.002(b).
FACTS
6.     Daniel W. Warren is the sole beneficiary of the Daniel Steven Weiner 1996 Trust
(Daniel’s Trust), an irrevocable inter vivos trust created by Respondent Andy Weiner and
Katherine Warren on March 20, 1996. A true and correct copy of the Trust Agreement is
attached hereto as “Exhibit B” and is incorporated for all purposes. Although neither party
has a signed copy of Daniel’s Trust Agreement, the parties have admitted the authenticity of
the unsigned copy in pleadings and discovery.
7.     Andy I. Weiner and Katherine R. Warren, are Trustors (settlors) and Trustees of
Daniel’s Trust. Either trustee may serve alone if one of them should cease to act as trustee.
[Paragraph D-1 of Daniel’s Trust Agreement].
8.   The Trust Agreement grants the trustee discretion to make distributions for Daniel’s
best interest, considering his age, the income and transfer tax effects, the cost of his support,
maintenance, education, and comfort without regard to any other resources available to him
2
for these purposes, and any other factors the trustee deems relevant. [Paragraphs A-1 and C-2
of Daniel’s Trust Agreement].
9.    However, no distributions can be made “to a trustor, to any spouse of a trustor, or in
any manner that discharges a legal obligation (including an obligation of support) of a trustor
or any spouse of a trustor. Any distribution under this paragraph shall be a full discharge of
the trustee with respect thereto.” [Paragraph C-1 of the Trust Agreement].
10.   Daniel’s Trust currently owns marketable securities worth approximately $108,043 as
of September 30, 2014. The Trust assets came from a variety of sources, but primarily from
Daniel’s grandparents who wrote checks payable to “Andy Weiner, Custodian for Daniel
Weiner,” which Andy Weiner endorsed and deposited into Daniel’s Trust.
11.   Daniel’s Trust Agreement provides that Daniel may withdraw the entire Trust corpus
within 60 days after he becomes 21. To the extent Daniel does not exercise this withdrawal
right, the Trust continues until Daniel becomes 30, or dies, whichever is earlier.
12.   The Trust Agreement prohibits loans without adequate interest. It also prohibits loans to
a trustor as follows: “No power granted the trustee shall be construed to enable any person to
purchase, exchange, or otherwise deal with or dispose of any trust estate for less than an
adequate consideration in money or money’s worth or to authorize loans to any person
without adequate interest. No part of any trust estate may be (i) loaned to a trustor or to any
spouse of a trustor….” [Paragraph E-3(a) of the Trust Agreement]. Andy Weiner admits that
he read Paragraph E-3(a) before he borrowed the money. But he decided that “It was better
to borrow money from this trust than go into bankruptcy.” [Deposition of Andy Weiner, Jan.
16, 2014, page 33, lines 13-16].
13.   The Trust Agreement waives the trustee’s common law duty to diversify the Trust
3
investments by permitting the trustee to invest in “property of any description,” including
“property unproductive of income, 1 shares of open or closed end investment trusts or
companies, wasting assets, 2 and any other property, regardless of location and without regard
to any requirement of diversification as to kind or amount.” [Paragraph E-1(a) of Daniel’s
Trust Agreement].
14.   However, the Trust Agreement does not waive the trustee’s duty to exercise judgment
or the duty not to speculate with Trust assets under Texas Property Code § 113.056, which
applied prior to January 1, 2004, as follows:
Unless the terms of the trust instrument provide otherwise, in acquiring, investing,
reinvesting, exchanging, retaining, selling, supervising, and managing trust
property… a trustee shall exercise the judgment and care under the circumstances
then prevailing that persons of ordinary prudence, discretion, and intelligence in
the management of their own affairs, not in regard to speculation but in regard
to the permanent disposition of their funds, considering the probable income from
as well as the probable increase in value and safety of their capital.
15.   Nor does the Trust Agreement waive the trustee’s duty to prudently invest the Trust
assets and make them productive. Texas Property Code § 117.004(a) provides that: “A
trustee shall invest and manage trust assets as a prudent investor would, by considering the
purposes, terms, distribution requirements, and other circumstances of the trust.” Langford
v. Shamburger, 
417 S.W.2d 438, 444-445, n.r.e. (It is a breach of fiduciary duty to
unreasonably delay the investment of trust funds).
1
“Property unproductive of income” is property that has with little or no income, but is expected to appreciate,
such as raw land or growth oriented (low-yield) stocks. [Rest. 3rd, Trusts (Prudent Investor Rule § 227, cmts.]
2
“Wasting assets” are those that are overproductive of income, such as an oil well or coal deposit that depletes
itself through use over time. [Rest. 3rd, Trusts (Prudent Investor Rule § 227, cmts.]
4
16.   The Trust Agreement relieves the trustee of liability “for any act or omission except in
the case of gross negligence, bad faith or fraud. Specifically in assessing the propriety of any
investment of a trust estate, the overall performance of the entire trust estate shall be taken
into account.” [Paragraph D-3(b) of the Trust Agreement] This Paragraph does not excuse
Andy Weiner for intentionally breaching his fiduciary duty. Nor could it, because Texas
Property Code § 114.007(a) renders any term of a trust relieving a trustee of liability for an
intentional breach of trust as unenforceable.
17.   Andy Weiner began purchasing Weiners Stores Inc. stock for the Trust in 1999, shortly
after it began trading on the OTC Bulletin Board in August 1998. OTC stocks do not meet
the listing requirements of the national exchanges like NYSE, AMEX, and NASDAQ
because they tend to be too small, closely held, thinly traded and risky.
18.   Weiners Stores Inc. had just emerged from Chapter 11 bankruptcy in August 1997, had
only 518 shareholders, and was trading at 12.5 cents to $1.50 a share in 1998 and 1999. 3 Its
Annual Report filed with the SEC in April 1999 reported that its sales were sliding and it had
not paid a dividend or had an operating profit in the last five years. 
Id.
19.   Andy Weiner was aware that Weiners Stores Inc. was a risky investment. He was an
executive officer of Weiners Stores Inc. for five to eight years before it filed for bankruptcy
in 1995. [Andy Weiner Deposition, Jan. 16, 2014, p. 14, lines 1-17] Andy Weiner has a BA
from Stanford and a Masters in Business from the University of Texas and is a retail
shopping center developer. [Id. at p. 13, lines 16-25].
20. Andy Weiner made several purchases of Weiner Stores Inc. stock for the Trust in May,
3
Weiners Stores Inc. Annual Report - [X] Reg. S-K Item 405 - Form 10-K, available at
http://www.secinfo.com/dRx61.68u.d.htm#6thPage.
5
June, and August 1999, spending $28,764 of Trust money. By August 31, 1999, he had
accumulated 52,000 shares of Weiners Stores Inc. stock in the Trust, which was over 65
percent of its value. Intentionally placing such a large percentage of the Trust’s assets at a
risk of total loss was grossly negligent. [Dolan v. Dolan, 2009 Tex. App.-Houston Lexis
4487 (The trustee, an experienced businessman, was grossly negligent and ordered to pay
exemplary damages for placing nearly half the trust assets at risk of total loss.)]
21. Weiner Stores Inc. filed for Chapter 11 bankruptcy again in October 2000. It
announced that it was closing all of its stores in June 2001. Andy Weiner sold the Trust’s
52,000 shares in December 2001 for $2, resulting in a complete loss of the Trust’s $28,762
investment. Weiners Stores Inc. converted to a Chapter 7 bankruptcy six months later.
22.   During the three years that Daniel’s Trust funds were invested in Weiners Stores Inc.
stock, Daniel’s Trust lost over 12 percent of its portfolio value each year. Investing in
Weiners Stores Inc. was grossly negligent based on the “overall performance of the entire
trust estate,” which is the standard set forth in the Trust Agreement by which the propriety of
an investment will be evaluated.
23.   On March 30, 2009, Andy Weiner liquidated the Trust’s entire portfolio and on April 9,
2009 he knowingly and intentionally instructed Fidelity to transfer $90,959.38 to his own
personal account at Fidelity. This left $1,000 in the Trust, with no promissory note, no
interest, and no security for the $90,959.38 loan to Andy Weiner, who was “on the edge of
bankruptcy.” Andy Weiner knew that making the loan to himself was directly contrary to the
Trust Agreement and that it would place the entire Trust portfolio at risk of loss by making
an unsecured loan to a person on the edge of bankruptcy. [Dolan v. Dolan, 2009 Tex. App.-
6
Houston Lexis 4487 (The trustee was found to be grossly negligent and ordered to pay
exemplary damages for loaning himself half the trust funds without interest or security.)]
24.   On July 10, 2010, Andy Weiner repaid $90,959.38 to Daniel’s Trust without interest.
Thereafter, he purposely delayed reinvesting the Trust money for 26 months until September
2012 when he finally invested the funds 51 percent in Fidelity Spartan 500 Index Fund
(FUSEX), 31 percent in Fidelity Contrafund (FCNTX), and 18 percent in Fidelity Total Bond
Fund (FTBFX).
25.   Had Andy Weiner invested Daniel’s Trust funds on April 9, 2009 in the same funds and
percentages as he purchased for the Trust in September 2012, Daniel’s Trust would have
earned $67,901 from April 9, 2009 to September 11, 2012. Yet the Trust earned less than
$100 during this same time period. In fact, since its inception in 1996, Daniel’s Trust lost an
average of -1.167 percent per year. Based on the “overall performance of Daniel’s entire trust
estate,” it was grossly negligent not to invest Daniel’s Trust money from April 9, 2009 to
September 11, 2012.
26.   Failing to invest the Trust assets was also bad faith because Andy Weiner had an
improper motive for not investing the money. He planned to use the trust funds for his own
“personal spending,” according to an email he wrote to Katherine in 2011 stating that he was
ready to consider investing the kid’s trust funds because “If we sell the Tractor’s in the near
term, we would not need their funds for our personal spending.” [Robson v. Gilbreath, 
267
S.W.3d 401, 407 (Tex. App.—Austin 2008, pet. denied) (“Improper motive is an essential
element of bad faith.”); In re Hubberd Testamentary Trust, 
432 S.W.3d 358, 369 (Tex. App.
San Antonio 2014) ("Bad faith is not simply bad judgment or negligence, but means the
conscious doing of a wrong for dishonest, discriminatory, or malicious purpose.").
7
27.   Daniel W. Warren did not discover Andy Weiner’s breaches of fiduciary duty until
discovery began in Cause No. 425,577. Daniel was a minor when the borrowings and
imprudent investing occurred. The period of limitations does not begin to run against a
person entitled to bring an action for breach of fiduciary duty while the person is under 18
years old. [Tex. Civ. Prac. & Rem. Code §§ 16.001, 16.004.] Daniel W. Warren became age
18 on March 11, 2014 and is thus within the limitations period for bringing this action.
28.   On December 19, 2013, Daniel W. Warren, through his attorney, demanded an
accounting of his Trust under Texas Property Code § 113.151-152. Andy Weiner has not yet
provided one.
CAUSES OF ACTION
29.   Daniel W. Warren incorporates by reference each and every allegation contained in the
preceding paragraphs as if fully set forth herein.
30.   There is a real and justiciable controversy between Daniel W. Warren and Andy
Weiner concerning Andy Weiner’s actions as trustee of Daniel’s Trust.
31.   Andy Weiner has knowingly, intentionally, and with gross negligence breached his
fiduciary duties in the following manner, resulting in a material loss to the Trust:
a.        By knowingly and intentionally exposing over 65 percent of Daniel’s Trust
funds to an extreme degree of risk by investing in Weiner Stores Inc., a highly speculative
unlisted penny stock with no earnings or dividend history, resulting in a complete loss of the
$28,762 investment, plus any future earnings it could have made, in violation of the duty to
prudently invest the Trust assets without speculation under the Texas Property Code §
113.056 as it applied prior to January 1, 2004, resulting in a material loss to the Trust;
8
b.     By knowingly and intentionally instructing Fidelity to transfer nearly all of
Daniel’s Trust funds to Andy Weiner’s own personal account at Fidelity on April 9, 2009, in
violation of the Trust Agreement, which expressly forbids “loans to a trustor or any spouse
of a trustor” and “loans to any person without adequate interest” [Paragraph E-3(a) of the
Trust Agreement], which Andy Weiner read before he transferred the money to himself,
resulting in a material loss to the Trust;
c.     By knowingly and intentionally instructing Fidelity to transfer nearly all of
Daniel’s Trust funds to Andy Weiner’s own personal account at Fidelity on April 9, 2009 in
violation of the Trust Agreement Paragraph C-1, which expressly forbids “distributions to a
trustor, or in any manner that discharges a legal obligation (including an obligation of
support) of a trustor or any spouse of a trustor,” resulting in a material loss to the Trust;
d.     By failing to compensate Daniel’s Trust for Andy Weiner’s personal use of
$90,959.38 belonging to the Trust, resulting in a material loss to the Trust;
e.     By knowingly and intentionally putting his own interest above the beneficiary’s
by using Daniel’s Trust funds as Andy Weiner’s own money, in violation of the duty of
loyalty under Texas Trust Code § 117.007, the duty not to profit by self-dealing with the
Trust under Texas Trust Code § 114.0001(a), and the duty to segregate trust assets under
Restatement of the Law Third (Trusts) § 179, resulting in a material loss to the Trust;
f.         By knowingly, intentionally, and with bad faith failing to invest Daniel’s
Trust funds from April 9, 2009 to September 11, 2012 in violation of the duty to prudently
invest the Trust assets under Texas Property Code § 117.004 and the duty of loyalty under
Texas Property Code § 117.007, resulting in a material loss to the Trust;
9
g.          By refusing to render an accounting after written demand by Daniel W.
Warren on December 19, 2013 in violation of the duty to account under Texas Trust Code
§§ 113.151 and 113.152.
32.        Daniel and his Trust have suffered substantial economic damages as a direct result
of Andy Weiner’s gross negligence and material breaches of fiduciary duty enumerated
above.
33.      Removal of Andy Weiner as Trustee is necessary to prevent further harm to the Trust.
RELIEF REQUESTED
WHEREFORE, Daniel W. Warren respectfully requests:
34. Judgment against Andy Weiner for a sum within the jurisdictional limits of the Court.
35. Monetary relief of over $200,000 but not more than $1,000,000.
36. Removal of Andy Weiner as Trustee of the Daniel Steven Weiner 1996 Trust pursuant
to Texas Property Code §§ 114.008(a)(7) and 113.082;
37. That Andy Weiner be ordered to pay money or restore property to Daniel’s Trust equal
to the trust’s lost profits caused by Andy Weiner’s improper borrowing and failure to
prudently invest the Trust funds, pursuant to Texas Property Code § 114.008(a)(3) and its
predecessor Texas Property Code § 113.056;
38. That Andy Weiner be ordered to pay Daniel’s Trust exemplary damages of greater than
two times the Trust’s economic damages based his knowing, intentional, and reckless dealing
with Trust property worth over $20,000 in a manner that is contrary to the Trust Agreement
and the Texas Property Code, and involved a substantial risk of loss to the Trust. [Tex. Civ.
Prac. & Rem. Code § 41.008(b), 41.008(c)(10); Tex. Penal Code § 32.45].
10
39. That Daniel W. Warren be awarded reasonable and necessary attorney fees, costs, and
expenses through trial and all appeals under applicable Texas law, including but not limited
to Texas Civ. Prac. & Rem. Code § 38.001 and Texas Property Code §§ 114.064 and
113.151(a).
40. That Andy Weiner be ordered to submit an accounting that meets the requirements of
Texas Property Code § 113.152 and personally bear the cost of the accounting pursuant to
Texas Property Code § 113.151.
41. That Daniel’s Trust be modified pursuant to Texas Property Code § 112.054(a)(3) to
appoint Daniel Warren as co-Trustee with Katherine Warren, or alternatively to terminate the
Trust and distribute the funds to Daniel Warren.
42. That Daniel W. Warren and his Trust be awarded prejudgment and post judgment
interest at the rate of 5 percent as provided by the Texas Finance Code § 304.003(c), or as
otherwise appropriate.
PRAYER
WHEREFORE PREMISES CONSIDERED, Daniel W. Warren prays that the Court grant
the requested relief and such further relief to which Daniel W. Warren and his Trust are
justly entitled.
By:_/s/ Carol A. Cantrell
Carol A. Cantrell, Attorney for Daniel W. Warren
Texas Bar No.: 24043592
Meredith N. McIver
Texas Bar No.: 24078974
3700 Buffalo Speedway, Suite 520
Houston, TX 77098
Phone: 713-333-0555
Fax: 713-333-0550
11
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been duly served
by citation and/or electronic service to counsel of record indicated below on this December 1,
2014.
Sarah Patel Pacheco
Kathleen Tanner Beduze
Crain Caton & James
Five Houston Center,
1401 McKinney, 17th Floor
Houston, TX 77010
pacheco-efile@craincaton.com
713-658-1921 (facsimile)
ATTORNEY FOR RESPONDENT ANDY I. WEINER
Thomas R. Conner
Conner & Lindamood, P.C.
1221 Lamar, Suite 1010
Houston, TX 77010
tom@lawcl.com
713-654-8115 (facsimile)
ATTORNEY FOR KATHERINE R. WARREN
By:_/s/ Carol A. Cantrell
12
No. 425,577
IN RE:                                  §             IN THE PROBATE COURT
§
OJ\ VID ABRAHAM WEINER                  §             NO . ..+
':is
1994 TRUST                             §             HARRIS COUNTY, TEXAS
AMEN DED ORDER ON MOTION TO SEVER
On this date. the Court having considered Daniel W. Warren's Motion to Sever and the
Court's written and verbal Orders on August 27-28. 2014. GRANTS the Motion to Sever as
follows. It is hereby:
ORDERED that Danie l W. Warren shall restate the claims set forth in his Motion to
Sever as a new Original Petition by December I, 2014 and complete service pursuant to the rules
that would apply to a new lawsuit. It is fur1her,
ORDERED that the Court Clerk assign Cause No. 425,576-401 to Daniel W. Warren's
new Original Petition. It is further.
ORDERED that Daniel W. Warren file all future pleadings. motions. and other papers
under Cause No. 425576-40 I as Petitioner rather than Intervenor. ll is further.
ORDERED that all prior discovery. orders. motions, responses and answers pertainjng to
Daniel W. Warren in Cause No. 425,577 shall apply in the same ma1111er as if such had occurred
in Cause No. 425,576-401, and that the Clerk of this Court is hereby directed to transfer and file
copies of the following pleadings and orders from Cause No. 425,577 to Cause No. 425,576-40 I:
1.      Daniel W. Warren's Original Petition in Intervention: docket entry date 4-22-14
2.       Andy Weiner's Motion for Partial Summary Judgment (a copy of wh ich shall
remain filed in Cause No. 425,577): docket entry date 7-15-14
3.      Andy Weiner's Special Exceptions to the Original Petition in Intervention filed by
Daniel W. Warren; docket entry date 8-5-14
4.       Notice of Submission of Andy Weiner's Motion fo r Partial Summary Judgment (a
copy of which shall remain filed in Cause No. 425,577); docket entry date 8-5-14
5.      Petitioners' Notice of Nonsuit Against Katherine Warren (a copy of which shall
remain filed in Cause No. 425.577); docket entry date 8-7-14
EXHIBIT
exhibitsticker.com
A
6.    Andy Weiner's Motion to Compel Depositions (a copy of which shall remmn
filed in Cause No. 425,577): docket entry date 8-14-14
7.    Petitioners' Joint Motion lor Partial Summary Judgment (a copy of which shall
remain filed in Cause No. 425,577): docket entry date 7-1-14
8.    Motion for Continuance of Hearing on Motion for Prutial Summary Judgment (a
copy of which shall remain filed in Cause No. 425,577); docket entry date 8- 14-
14
9.    Petitioners' Response to Andy Weiner's Motion to Compel (a copy of which shall
remain filed in Cause No. 425.577): docket entry date 8-18-14
I0.   Andy Weiner's Special Exceptions to Petitioners' Joint Motion for Partial
Summary Judgment (a copy of which shall remain filed in Cause No. 425,577):
docket entry date 8-22-14
II.   Petitioners' Response to Andy Weiner's Motion for Continuance (a copy of
which shall remain filed in Cause No. 425.577): docket entry date 8-25-14
12.   Petitioners' Response to Andy Weiner's Special Exceptions to Petitioners' .Joint
Motion for Partial Summary Judgment (a copy of which shall remain filed Ill
Cause No. 425.577); docket entry date 8-25-14
13.   Order Granting Andy Weiner's Special Exceptions to the Original Petition m
Intervention filed by Dru1iel W. Warren: docket entry date 8-29-14
14.   Order Denying Motion for Sanctions: docket entry date 8-29-14
15.   Order Partially Granting and Partially Denying Andy Weiner's Special
Exceptions to Petitioners' Joint Motion lor Partial Summary Judgment (a copy or
which shall remain filed in Cause No. 425.577): docket entry date 9-4-14
16.   Daniel W . Warren's Motion to Sever: docket entry date 9-8-14
17.   Order Pattially Granting ru1d Partially Denying Andy Weiner's Motion for Partial
Summary Judgment (a copy of which shall remain filed in Cause No. 425,577):
docket entry date 9-26-14
18.   Order Granting Motion to Sever: signed I 1-5-14
19.   Cow·t's Docket Sheet: docket entry date 8-29-14
20.   Andy Weiner's First Supplement To Original Answer; docket entry date 7-8-14
21.   Petitioner's Response to Andy Weiner's Motion for Partial Traditional Summary
Judgment; docket entry date 8-5-14;
22.   Petitioner's Application to Quash Deposition of Daniel Warren; docket entry date
8-11-14;
23.   Order to Compel Depositions Granted: docket entry date 8-29-14: and
24.   Petitioner's Responses to Andy Weiner's Special Exceptions to Petition m
intervention and Motion for Sanctions; docket entry date 8-19-14.
It is further,
ORDERED that Cause No. 425,576-401 is subject to the deadlines set out in the Agreed
Docket Control Order dated August 27, 2014 relating to Cause No. 425,577. It is fm1her,
ORDERED that all costs related to the copying, transfer, and filing of items l through 24
herein be assessed against Daniel Warren. It is fut1hcr,
ORDERED that if Daniel W. Warren fails to file a new Original Petition by the 1st day of
December, 2014 as Cause No. 425,576-401, his pleading in Cause No. 425,577 will be
dismissed.
SIGNED on this _lJ_ day of N~                       , 2014.
PRESIDING JUDGE
DANIEL STEVEN WEINER 1996 TRUST
By this trust agreement, Andy I. Weiner and Katherine Friedman
Weiner, husband and wife, both of Harris County, Texas, as
"trustors," establish the Daniel steven Weiner 1996 Trust for the
benefit of their son, Daniel steven Weiner ("Daniel"), born
March 11, 1996.    Trustors grant, assign and deliver to Andy I.
Weiner and Katherine Friedman Weiner, both of Harris County, Texas,
as "trustees," the property described in Attachment A. Attachment
A, which is captioned "Initial Contributions to the Daniel Steven
Weiner 1996 Trust, 11 is incorporated by reference as a part of this
trust agreement.
This trust agreement and the trusts established by it are
irrevocable.   No person shall have the right to revoke or amend
this trust agreement or any of its provisions. However, property
acceptable to the trustee may be added to any trust from time to
time in the future by trustors or by any other person (including
additions pursuant to the provisions of the last will of any
person) .
All references to "trustee" shall refer to the person or
persons then acting as such.
A.    PRIMARY TRUST
A-1.   Distributions . The income of the trust may be accumulated
and retained, in whole or in part, or the trustee may distribute to
Daniel, from time to time, so much or all of the trust estate as,
in the trustee's discretion, is in Daniel's best interests.
A-2.   Termination.  Daniel may withdraw any part or all of the
trust estate within 60 days after he becomes age 21, and may
thereby terminate the trust as to the part withdrawn.    Exercise of
this withdrawal right shall be by one or more written instruments
delivered to the trustee within the 60-day period.    If or to the
extent that Daniel does not exercise this withdrawal right, the
trust shall continue until Daniel becomes age 30 or dies before
that age, at which time the trust estate shall be distributed:
(a)    To Daniel.
(b) If Daniel is not then living, to such one or more
persons, corporations or organizations (including Daniel's estate) ,
as Daniel appoints by a will which specifically refers to this
power of appointment.    If or to the extent that Daniel does not
effectively exercise this power of appointment, the trust estate
shall be distributed:
(1)    To Daniel's descendants.
(2)  If none of Daniel's descendants is then living, to
trustors' descendants.                                    .-............. .
EXHIBIT
exhibitsticker.com
B
( 3) If none of trusters'      descendants   is   then living,   to
trusters' heirs.
A-3. Payment of Taxes.     If Daniel's will contains no contrary
directions, the trustee shall pay from the trust estate the entire
increment in taxes payable by reason of Daniel's death (including
any interest or penalties thereon) to the extent (if any) that the
total of such taxes is greater than would have been imposed if no
portion of the trust estate were taken into account in determining
such taxes.
B.    CONTINGENT TRUSTS
B-1. Trusts Established. Any portion of a trust estate upon the
trusts termination (other than a portion withdrawn by Daniel
pursuant to Paragraph A-2) which would be distributable to a
beneficiary who is under age 30 or to a beneficiary who is under a
legal disability instead shall be distributed to the trustee of a
Contingent Trust (unless otherwise directed by the valid exercise
of a power of appointment) .       Each beneficiary's portion so
distributed shall be held and administered as the initial trust
estate of a separate trust for the beneficiary.      However, if a
Contingent Trust is already in existence for that beneficiary, any
additional portion to be distributed to the trustee of a Contingent
Trust for the beneficiary shall be added to the trust estate of the
existing contingent Trust.
B-2. Distributions.      The income of each Contingent Trust may be
accumulated and retained, in whole or in part, or the trustee may
distribute to the beneficiary for whom the trust was established,
from time to time, so much or all of the trust estate as, in the
trustee's discretion, is in the beneficiary's best interests.
B-3. Termination. Each Contingent Trust shall terminate when the
beneficiary for whom the trust was established has become age 30
and is under no legal disability or upon the beneficiary's earlier
death. Upon termination, the trust estate shall be distributed:
(a)    To the beneficiary.
(b)  If the beneficiary is not then living, to such one or
more persons, corporations or organizations as the beneficiary
appoints by a will which specifically refers to this power of
appointment.   If none of the beneficiary's descendants is then
living, this power may not be exercised in favor of the
beneficiary, the beneficiary's estate, the beneficiary's creditors
or the creditors of the beneficiary's estate. If or to the extent
that the beneficiary does not effectively exercise this power of
appointment, the trust estate shall be distributed:
(1)   To the beneficiary's descendants.
-2-
(2) If none of the beneficiary's descendants is then living,
to the descendants of the beneficiary's nearest ancestor who was
one of trustors' descendants and who has descendants then living.
(3)  If none of these persons is then living, to trusters,
descendants.
( 4) If none of trustors'    descendants   is then   living,   to
trustors' heirs.
C.   DISTRIBUTIONS
c-1. Distributions to or for Beneficiaries. During the term of a
trust, any distribution to be made to a beneficiary from the trust
may be made (i) to the beneficiary, (ii) if the beneficiary is
under a legal disability or if the trustee determines that the
beneficiary is unable to properly manage his affairs, to a person
furnishing support, maintenance or education for the beneficiary or
with whom the beneficiary is residing, for expenditure on the
beneficiary's behalf, or (iii) to a custodian for a minor
beneficiary, as selected by the trustee, under the Uniform Gifts to
Minors Act of any state. Alternatively, the trustee may otherwise
apply all or a part of the distribution for the beneficiary's
benefit. However, no such distribution shall be made to a trustor,
to any spouse of a trustor, or in any manner that discharges a
legal obligation (including an obligation of support) of a trustor
or any spouse of a trustor. Any distribution under this paragraph
shall be a full discharge of the trustee with respect thereto.
c-2.  Best Interests of Beneficiary.    In making distributions in
the "best interests" of a beneficiary, the trustee may consider the
age of the beneficiary, the costs of the beneficiary's support,
maintenance, education and comfort without regard to any other
resources available to the beneficiary for these purposes, the
effect of any distribution upon the income and transfer tax
liability of the beneficiary or of the trust, and any other factors
deemed relevant by the trustee.
D.   OFFICE OF TRUSTEE
0-1.   Successor Trustee, Co-Trustee.  The following provisions
shall apply to each separate trust established under this trust
agreement:
(a) Successor Trustee.  Should Andy I. Weiner or Katherine
Friedman Weiner cease to act as trustee, for any reason, the one
remaining shall continue to act as trustee.   Should both Andy I.
Weiner and Katherine Friedman Weiner cease to act as trustees, for
any reason, trustors appoint Bayle Weiner Drubel as successor
trustee.
-3-
(b) Appointment of Successor Trustee by Trustee . At any time
after qualifying as trustee, any trustee may appoint a successor
trustee to act in his place, either immediately or in the future
upon any stated contingency, and may thereby supplement the
provisions of subparagraph (a).
(c) Appointment of Successor Trustee by Beneficiaries. If at
any time there is no trustee acting and none has been appointed, a
majority of the beneficiaries (acting through the beneficiary's
natural or legal guardian or legal representative, in the case of
a beneficiary under a legal disability) who might then be entitled
to receive a distribution from the trust estate shall appoint a
successor trustee.
(d)   Appointment of Co-Trustee.   The     trustee    (acting
unanimously if more than one) may appoint one or more co-trustees.
(e) Who May Be Appointed. A successor trustee or co-trustee
may be any individual, bank or trust company and may be domiciled
anywhere.
(f) Procedure for Appointment. Appointment shall be made by
written instrument filed with the trust records.          Any such
appointment may be changed or revoked prior to the date it becomes
effective.   Any such appointment may be limited in any manner
deemed advisable by the person making the appointment, including,
for example, restricting the power over distributions as necessary
to avoid the imposition of any tax upon the trust, the appointee or
the appointee's estate.
D-2. Resignation of Trustee. A trustee may resign from a trust
without the necessity of any court proceeding upon meeting these
conditions:
(a) Notice . At least 30 days' written notice      (if not waived)
shall be given to each beneficiary who might then       be entitled to
receive a distribution from the trust estate. If a      beneficiary is
under a legal disability, notice shall be given to       (or waived by)
the beneficiary's natural or legal guardian.
(b)   Accounting .  If and to the e x tent required by the
successor trustee, an accounting for the administration of the
trust shall be given to the successor trustee.      The successor
trustee shall be fully protected in relying upon such accounting.
D-3.   Rights and Liabilities.
(a) Bond Not Required. No bond or other security shall be
required of any trustee.
(b)   Liabilities.   This agreement shall always be construed in
-4-
favor of the validity of any act by or omission of any trustee. A
trustee shall not be liable for any act or omission except in the
case of gross negligence, bad faith or fraud.     Specifically, in
assessing the propriety of any investment of a trust estate, the
overall performance of the entire trust estate shall be taken into
account.
(c)  Compensation. Each trustee shall be entitled to receive
reasonable compensation for services actually rendered to a trust.
E.   ADMINISTRATION
E-1. General Powers of Trustee. To carry out the trust purposes
but subject to any limitations stated elsewhere herein, the trustee
of each trust shall have the following powers, which may be
exercised free from court supervision, and which shall exist until
all of the trust estate has been distributed:
(a)  Trust Estate. The trustee may invest and reinvest all or
any part of the trust estate in property of any description and may
retain as a part of the trust estate any property acquired at any
time and in any manner.   Specifically, and without regard to the
provisions of any applicable state law, the trustee may retain, or
invest and reinvest in, property unproductive of income, shares of
open or closed end investment trusts or companies, wasting assets,
and any other property, regardless of location and without regard
to any requirement of diversification as to kind or amount.
(b)   Business Interests. The trustee may continue operation
of any business entity, in any business form, with all or any part
of the trust estate, and may reorganize or liquidate any such
entity at any time.
(c) Transfers, Loans. The trustee may lease, sell, transfer,
or encumber in any manner (including with purchase money mortgages)
all or any part of the trust estate, and may loan or borrow money
in any manner (including by joint and several obligations) with or
without security. Subject to the provisions of Paragraph E-3{a),
the trustee may purchase assets from the estate of a trustor and
may loan funds to the estate of a trustor at such rate of interest
and with such security as the trustee determines to be in the best
interests of the current beneficiaries of the trust.
(d) Dealings With Related Parties. The trustee may deal with
any person or entity regardless of any relationship or identity of
any trustee to or with that person or entity and may hold or invest
all or any part of the trust estate in common or undivided
interests with that person or entity.
(e) Agents, Employees. The trustee may employ and compensate
agents and other employees ~nd may delegate to them any and all
discretions and powers.
-5-
(f) Partitions, Distributions. The trustee may partition all
or any part of any interest, may pay and receive such moneys or
properties as may be necessary to equalize differences, and in so
doing (i) may make any distribution of all or any part of the trust
estate in any manner (including composing shares differently) and
(ii) may evaluate any property, which valuation shall be binding on
all beneficiaries.
(g)   Claims, Controversies.    The trustee may maintain and
defend any claim or controversy by or against the trust without the
joinder or consent of any beneficiary.
(h)    Additional Powers. In addition, the trustee shall have
all rights, privileges and powers now or hereafter granted to
trustees in Texas, including those granted under the Texas Trust
Code.     Any subsequent legislation or regulation expanding or
limiting the rights, privileges and powers granted a trustee shall
apply to all trusts hereunder unless the trustee elects not to have
such legislation or regulation apply to a particular trust by a
written instrument filed with the trust records.       However, the
provisions made for the various beneficiaries under this trust
agreement are exclusive. Any statute that purports to enlarge the
class of beneficiaries to whom distributions may be made or the
purposes for which distributions may be made shall not apply to any
trust.    All trust powers may be exercised upon such terms as the
trustee deems advisable and may affect trust properties for any
length of time regardless of the duration of the trust. Generally,
and subject only to the terms of this trust agreement, the trustee
shall hold, manage, control, use, invest, reinvest, and dispose of
the trust estate to the same extent as if the trustee were the fee
simple owner thereof.
E-2.     Principal and Income Determinations.      The receipts,
disbursements and reserves of each trust may be allocated, on a
cash or accrual basis, between principal and income in the
trustee's discretion without regard to the provisions of any
statute.    To the extent the trustee does not exercise this
discretionary power, the provisions of the Texas Trust Code shall
control.
E-3.   Restrictions on the Exercise of Certain Powers.
(a) Dealings with Trust Estate. No power granted the trustee
shall be construed to enable any person to purchase, exchange, or
otherwise deal with or dispose of any trust estate for less than an
adequate consideration in money or money's worth or to authorize
loans to any person without adequate interest.      No part of any
trust estate may be (i) loaned to a trustor or to any spouse of a
trustor or (ii) applied to the payment of premiums on policies of
insurance on the life of a trustor or on the life of any spouse of
a trustor.
-6-
(b)  Distributions to or for Trustee. Any power to make
discretionary distributions to or for the benefit of a person who
is serving as trustee of a trust (including distributions to the
person's spouse and distributions in discharge of any legal
obligation of the person) shall be exercisable solely by the
trustee or trustees other than that person. If no other trustee is
then serving, such power shall not be exercisable.
E-4. Release and Delegations of Powers. Any power granted to a
trustee may be released, in whole or in part, temporarily or
permanently. Except as provided in Paragraph E-3, any such power
may be delegated, in whole or in part, temporarily or permanently,
to any other trustee then acting. A release or delegation shall be
by written instrument filed with the records of each trust to which
the release or delegation applies.
F.   DEFINITIONS AND GENERAL PROVISIONS
F-1. Trust Estate.   "Trust estate" means all assets, however and
whenever acquired (including income and accumulated income), which
may belong to a trust at any given time.
F-2. Descendants. "Descendants" means the legitimate children of
the person or persons designated and the legitimate lineal
descendants of such children, and includes any person adopted
before becoming age 18 and the adopted person's descendants.      A
posthumous child shall be considered as living at the death of his
parent. Whenever a distribution is to be made to the descendants
of any person, the property to be distributed shall be divided into
as many equal shares as there are living children of the person and
deceased children of the person who left descendants who are then
living.  Each living child shall take one share and the share of
each deceased child shall be divided among his then living
descendants in the same manner.   "Trusters' descendants" includes
only those persons descended from both trusters.
F-3.   Heirs.   Any distribution to be made to the "heirs" of a
person shall be made to the individuals who would have inherited
the person's personal property if the person had died intestate at
the time the distribution is to be made, domiciled in Texas and not
married, under the laws of Texas in force on the effective date of
this trust agreement, with the shares of taking determined by those
laws. However, both trusters and any spouse of a trustor shall be
deemed to have died prior to the time that any such distribution is
to be made. A distribution to "trusters' heirs" shall be made to
the heirs of Andy I. Weiner.
F-4. Internal Revenue Code.    "Internal Revenue Code" means the
Internal Revenue Code of 1986, as amended, or corresponding
provisions of any subsequent federal tax laws.
-7-
F-5. Other Terms. The use of any gender includes the other
genders, and the use of either the singular or the plural includes
the other.
F-6. Spendthrift Provision. No beneficiary shall have the power
to anticipate, encumber, or transfer his interest in any trust
estate in any manner. No part of any trust estate shall be liable
for or charged with any debts, contracts, liabilities or torts of
a beneficiary or subject to seizure or other process by any
creditor of a beneficiary.    Nothing in this paragraph shall be
construed to limit the otherwise valid exercise of a power of
appointment or right of withdrawal given by this trust agreement.
F-7. Texas Law Applies. The situs of the trusts established under
this trust agreement is Texas.     Wherever possible, the laws of
Texas shall apply to the construction, administration and validity
of each trust.
F-8. Maximum Term of Trusts. No trust shall continue for a period
longer than 21 years after the death of the last to die of trustors
and all of trustors' descendants who are living on the effective
date of this trust agreement. Any trust still in force at the end
of such period shall terminate, and the trust estate shall be
distributed to the beneficiary for whom the trust was established.
F-9.   Powers of Appointment Exercisable by Beneficiaries.       In
exercising a power of appointment given to a beneficiary by this
trust agreement, the beneficiary may appoint the property subject
to the power outright to the appointee, in trust, or to a custodian
for the appointee under the Uniform Gifts to Minors Act of any
state. If the beneficiary appoints to a custodian, he may select
the custodian. If the beneficiary appoints in trust, he may select
the trustee or trustees, may establish such administrative terms
for the trust as he deems appropriate, and may impose lawful
spendthrift restrictions.   He may give the trustee discretionary
powers over the income and principal, and may create a trust that
has several permissible distributees. He may create life interests
or other limited interests in some appointees with future interests
in favor of other appointees, may appoint different types of
interests among the appointees, and may create new powers of
appointment in a trustee or trustees or in any appointee. He may
impose lawful conditions on an appointment and,, in general, may
appoint to or among the appointees in any lawful manner.
In determining whether, in what manner and to what extent a
testamentary power of appointment has been exercised by a
beneficiary, the trustee may act in reliance upon a court order
admitting an instrument to probate as the beneficiary's last will
or an order finding that the beneficiary died intestate.     Unless
within six months after the beneficiary's death the trustee has
actual notice of the existence of proceedings to probate a will of
the beneficiary, the trustee shall assume that the beneficiary died
-8-
intestate. The foregoing provisions are intended to expedite the
prompt and efficient administration of the trust and to protect the
trustee from any action taken or distribution made in accordance
with these provisions.   Nothing in this paragraph shall limit or
qualify any power of appointment given by this trust agreement or
any right which an appointee or taker in default of appointment may
have against any person receiving a distribution from the trustee
irrespective of the place of probate or of the time of discovery of
a will exercising the power or any other action taken in the
beneficiary's estate.
G.   ACCEPTANCE BY TRUSTEE
By signing this trust agreement, the trustee (i) accepts these
trusts and all of the rights, powers and duties attached to the
office of trustee as provided herein, (ii) agrees to serve as
trustee of the Daniel Steven Weiner 1996 Trust and of any
Contingent Trusts which may be established under this trust
agreement, (iii) acknowledges receipt of the property described in
Attachment A, and (iv) agrees to hold and administer each trust
estate in accordance with the terms of this trust agreement.
This trust agreement is executed effective as of the 20th day
of March, 1996.
Andy I. Weiner, Trustor and
Trustee
Katherine Friedman Weiner,
Trustor and Trustee
-9-
ATTACHMENT A: INITIAL CONTRIBUTIONS
TO THE DANIEL STEVEN WEINER 1996 TRUST
$1.00
Andy I. Weiner, Trustor and
Trustee
Katherine Friedman Weiner,
Trustor and Trustee
3559:painsc\0157136
-10-
No. 425,577
INRE:                                  §             IN THE PROBATE COURT
§
DAVID ABRAHAM WEINER                   §             N0.4
§
1994 TRUST                             §             HARRIS COUNTY, TEXAS
AMENDED ORDER ON MOTION TO SEVER
On this date, the Court having considered Daniel W. Warren' s Motion to Sever and the
Court's written and verbal Orders on August 27-28 , 2014, GRANTS the Motion to Sever as
follows . It is hereby:
ORDERED that Daniel W. Warren shall restate the claims set forth in his Motion to
Sever as a new Original Petition by December 1, 2014 and complete service pursuant to the rules
that would apply to a new lawsuit. It is further,
ORDERED that the Court Clerk assign Cause No . 425 ,576-401 to Daniel W. Warren ' s
new Original Petition. It is further,
ORDERED that Daniel W. Warren file all future pleadings, motions, and other papers
under Cause No. 425 ,576-401 as Petitioner rather than Intervenor. It is further,
ORDERED that all prior discovery, orders, motions, responses and answers pertaining to
Daniel W. Warren in Cause No. 425 ,577 shall apply in the same manner as if such had occurred
in Cause No. 425 ,576-401, and that the Clerk of this Court is hereby directed to transfer and file
copies of the following pleadings and orders from Cause No. 425,577 to Cause No. 425 ,576-401:
I.      Daniel W. Warren' s Original Petition in Intervention; docket entry date 4-22-14
2.      Andy Weiner' s Motion for Partial Summary Judgment (a copy of which shall
remain filed in Cause No. 425 ,577); docket entry date 7-15-14
3.      Andy Weiner' s Special Exceptions to the Original Petition in Intervention filed by
Daniel W. Warren; docket entry date 8-5-14
4.      Notice of Submission of Andy Weiner ' s Motion for Partial Summary Judgment (a
copy of which shall remain filed in Cause No. 425 ,577); docket entry date 8-5-14
5.       Petitioners ' Notice of Nonsuit Against Katherine Warren (a copy of which shall
remain filed in Cause No. 425 ,577); docket entry date 8-7-14
EXHIBIT
exhibitsticker.com
A
6.    Andy Weiner' s Motion to Compel Depositions (a copy of which shall remain
filed in Cause No . 425 ,577); docket entry date 8-14-14
7.    Petitioners ' Joint Motion for Partial Summary Judgment (a copy of which shall
remain filed in Cause No. 425 ,577); docket entry date 7-1-14
8.    Motion for Continuance of Hearing on Motion for Pruiial Summary Judgment (a
copy of which shall remain filed in Cause No . 425 ,577); docket entry date 8-14-
14
9.    Petitioners' Response to Andy Weiner' s Motion to Compel (a copy of which shall
remain filed in Cause No . 425 ,577); docket entry date 8-18-14
10.   Andy Weiner' s Special Exceptions to Petitioners ' Joint Motion for Partial
Summary Judgment (a copy of which shall remain filed in Cause No. 425 ,577);
docket entry date 8-22-14
11.   Petitioners' Response to Andy Weiner' s Motion for Continuance (a copy of
which shall remain filed in Cause No. 425 ,577); docket entry date 8-25-14
12.   Petitioners ' Response to Andy Weiner' s Special Exceptions to Petitioners' Joint
Motion for Partial Swnmary Judgment (a copy of which shall remain filed in
Cause No. 425 ,577); docket entry date 8-25-14
13.   Order Granting Andy Weiner' s Special Exceptions to the Original Petition in
Intervention filed by Daniel W. Warren; docket entry date 8-29-14
14.   Order Denying Motion for Sanctions; docket entry date 8-29-14
15.   Order Pruiially Grru1ting and Partially Denying Andy Weiner's Special
Exceptions to Petitioners' Joint Motion for Pruiial Summary Judgment (a copy of
which shall remain filed in Cause No . 425 ,577) ; docket entry date 9-4-14
16.   Daniel W. Warren ' s Motion to Sever; docket entry date 9-8-14
17.   Order Partially Granting at1d Partially Denying Andy Weiner' s Motion for Partial
Summary Judgment (a copy of which shall remain filed in Cause No. 425 ,577);
docket entry date 9-26-14
18.   Order Granting Motion to Sever; signed 11-5-14
19.   Cowi' s Docket Sheet; docket entry date 8-29-14
20.   Andy Weiner's First Supplement To Original Answer; docket entry date 7-8-14
21.   Petitioner' s Response to Andy Weiner' s Motion for Pariial Traditional Swnmru·y
Judgment; docket entry date 8-5-14;
22.   Petitioner' s Application to Quash Deposition of Dru1iel WatTen; docket entry date
8-11-14;
23.   Order to Compel Depositions Granted; docket entry date 8-29-14; and
24.   Petitioner' s Responses to Andy Weiner' s Special Exceptions to Petition        111
Intervention and Motion for Sanctions; docket entry date 8-19-14.
It is further,
ORDERED that Cause No. 425,576-401 is subject to the deadlines set out in the Agreed
Docket Control Order dated August 27, 2014 relating to Cause No. 425,577. It is further,
ORDERED that all costs related to the copying, transfer, and filing of items 1 through 24
herein be assessed against Daniel Warren. It is further,
ORDERED that if Daniel W. Warren fails to file a new Original Petition by the 1st day of
December, 2014 as Cause No. 425 ,576-401 , his pleading in Cause No. 425,577 will be
dismissed.
SIGNED on this _JJ_ day of f'J~                     , 2014.
PRESIDING JUDGE
DANIEL STEVEN WEINER 1996 TRUST
By this trust agreement, Andy I. Weiner and Katherine Friedman
Weiner, husband and wife, both of Harris County, Texas, as
"trustors," establish the Daniel steven Weiner 1996 Trust for the
benefit of their son, Daniel Steven Weiner ("Daniel"), born
March 11, 1996.   Trustors grant, assign and deliver to Andy I.
Weiner and Katherine Friedman Weiner, both of Harris County, Texas,
as "trustees," the property described in Attachment A. Attachment
A, which is captioned "Initial Contributions to the Daniel Steven
Weiner 1996 Trust," is incorporated by reference as a part of this
trust agreement.
This trust agreement and the trusts established by it are
irrevocable.   No person shall have the right to revoke or amend
this trust agreement or any of its provisions. However, property
acceptable to the trustee may be added to any trust from time to
time in the future by trustors or by any other person (including
additions pursuant to the provisions of the last will of any
person).
All references to "trustee" shall refer to the person or
persons then acting as such.
A.    PRIMARY TRUST
A-1.   Distributions . The income of the trust may be accumulated
and retained, in whole or in part, or the trustee may distribute to
Daniel, from time to time, so much or all of the trust estate as,
in the trustee's discretion, is in Daniel's best interests.
A-2.   Termination.  Daniel may withdraw any part or all of the
trust estate within 60 days after he becomes age 21, and may
thereby terminate the trust as to the part withdrawn.    Exercise of
this withdrawal right shall be by one or more written instruments
delivered to the trustee within the 60-day period.    If or to the
extent that Daniel does not exercise this withdrawal right, the
trust shall continue until Daniel becomes age 30 or dies before
that age, at which time the trust estate shall be distributed:
(a)    To Daniel.
(b) If Daniel is not then living, to such one or more
persons, corporations or organizations (including Daniel's estate) ,
as Daniel appoints by a will which specifically refers to this
power of appointment.    If or to the extent that Daniel does not
effectively exercise this power of appointment, the trust estate
shall be distributed:
(1)    To Daniel's descendants.
(2)  If none of Daniel's descendants is then living, to
trustors' descendants.                                    . .............. .
EXHIBIT
exhibitsticker.com
B
( 3) If none of trusters'      descendants   is   then living,   to
trusters' heirs.
A-3. Payment of Taxes.     If Daniel's will contains no contrary
directions, the trustee shall pay from the trust estate the entire
increment in taxes payable by reason of Daniel's death (including
any interest or penalties thereon) to the extent (if any) that the
total of such taxes is greater than would have been imposed if no
portion of the trust estate were taken into account in determining
such taxes.
B.    CONTINGENT TRUSTS
B-1. Trusts Established. Any portion of a trust estate upon the
trusts termination (other than a portion withdrawn by Daniel
pursuant to Paragraph A-2) which would be distributable to a
beneficiary who is under age 30 or to a beneficiary who is under a
legal disability instead shall be distributed to the trustee of a
Contingent Trust (unless otherwise directed by the valid exercise
of a power of appointment) .       Each beneficiary's portion so
distributed shall be held and administered as the initial trust
estate of a separate trust for the beneficiary.      However, if a
Contingent Trust is already in existence for that beneficiary, any
additional portion to be distributed to the trustee of a Contingent
Trust for the beneficiary shall be added to the trust estate of the
existing contingent Trust.
B-2. Distributions.      The income of each Contingent Trust may be
accumulated and retained, in whole or in part, or the trustee may
distribute to the beneficiary for whom the trust was established,
from time to time, so much or all of the trust estate as, in the
trustee's discretion, is in the beneficiary's best interests.
B-3. Termination. Each Contingent Trust shall terminate when the
beneficiary for whom the trust was established has become age 30
and is under no legal disability or upon the beneficiary's earlier
death. Upon termination, the trust estate shall be distributed:
(a)    To the beneficiary.
(b)  If the beneficiary is not then living, to such one or
more persons, corporations or organizations as the beneficiary
appoints by a will which specifically refers to this power of
appointment.   If none of the beneficiary's descendants is then
living, this power may not be exercised in favor of the
beneficiary, the beneficiary's estate, the beneficiary's creditors
or the creditors of the beneficiary's estate. If or to the extent
that the beneficiary does not effectively exercise this power of
appointment, the trust estate shall be distributed:
(1)   To the beneficiary's descendants.
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(2) If none of the beneficiary's descendants is then living,
to the descendants of the beneficiary's nearest ancestor who was
one of trustors' descendants and who has descendants then living.
(3)  If none of these persons is then living, to trusters,
descendants.
( 4) If none of trusters'    descendants   is then   living,   to
trusters' heirs.
C.   DISTRIBUTIONS
c-1. Distributions to or for Beneficiaries. During the term of a
trust, any distribution to be made to a beneficiary from the trust
may be made (i) to the beneficiary, (ii) if the beneficiary is
under a legal disability or if the trustee determines that the
beneficiary is unable to properly manage his affairs, to a person
furnishing support, maintenance or education for the beneficiary or
with whom the beneficiary is residing, for expenditure on the
beneficiary's behalf, or (iii) to a custodian for a minor
beneficiary, as selected by the trustee, under the Uniform Gifts to
Minors Act of any state. Alternatively, the trustee may otherwise
apply all or a part of the distribution for the beneficiary's
benefit. However, no such distribution shall be made to a trustor,
to any spouse of a trustor, or in any manner that discharges a
legal obligation (including an obligation of support) of a trustor
or any spouse of a trustor. Any distribution under this paragraph
shall be a full discharge of the trustee with respect thereto.
c-2.  Best Interests of Beneficiary.    In making distributions in
the "best interests" of a beneficiary, the trustee may consider the
age of the beneficiary, the costs of the beneficiary's support,
maintenance, education and comfort without regard to any other
resources available to the beneficiary for these purposes, the
effect of any distribution upon the income and transfer tax
liability of the beneficiary or of the trust, and any other factors
deemed relevant by the trustee.
D.   OFFICE OF TRUSTEE
D-1.   Successor Trustee, Co-Trustee.  The following provisions
shall apply to each separate trust established under this trust
agreement:
(a) Successor Trustee.  Should Andy I. Weiner or Katherine
Friedman Weiner cease to act as trustee, for any reason, the one
remaining shall continue to act as trustee.   Should both Andy I.
Weiner and Katherine Friedman Weiner cease to act as trustees, for
any reason, trustors appoint Bayle Weiner Drubel as successor
trustee.
-3-
(b) Appointment of Successor Trustee by Trustee. At any time
after qualifying as trustee, any trustee may appoint a successor
trustee to act in his place, either immediately or in the future
upon any stated contingency, and may thereby supplement the
provisions of subparagraph (a).
(c) Appointment of Successor Trustee by Beneficiaries. If at
any time there is no trustee acting and none has been appointed, a
majority of the beneficiaries (acting through the beneficiary's
natural or legal guardian or legal representative, in the case of
a beneficiary under a legal disability) who might then be entitled
to receive a distribution from the trust estate shall appoint a
successor trustee.
(d)   Appointment of Co-Trustee.   The     trustee    (acting
unanimously if more than one) may appoint one or more co-trustees.
(e) Who May Be Appointed. A successor trustee or co-trustee
may be any individual, bank or trust company and may be domiciled
anywhere.
(f) Procedure for Appointment. Appointment shall be made by
written instrument filed with the trust records.          Any such
appointment may be changed or revoked prior to the date it becomes
effective.   Any such appointment may be limited in any manner
deemed advisable by the person making the appointment, including,
for example, restricting the power over distributions as necessary
to avoid the imposition of any tax upon the trust, the appointee or
the appointee's estate.
D-2. Resignation of Trustee. A trustee may resign from a trust
without the necessity of any court proceeding upon meeting these
conditions:
(a) Notice. At least 30 days' written notice       (if not waived)
shall be given to each beneficiary who might then       be entitled to
receive a distribution from the trust estate. If a      beneficiary is
under a legal disability, notice shall be given to       (or waived by)
the beneficiary's natural or legal guardian.
(b)   Accounting.   If and to the extent required by the
successor trustee, an accounting for the administration of the
trust shall be given to the successor trustee.      The successor
trustee shall be fully protected in relying upon such accounting.
D-3.   Rights and Liabilities.
(a) Bond Not Required. No bond or other security shall be
required of any trustee.
(b)   Liabilities.   This agreement shall always be construed in
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favor of the validity of any act by or omission of any trustee. A
trustee shall not be liable for any act or omission except in the
case of gross negligence, bad faith or fraud.     Specifically, in
assessing the propriety of any investment of a trust estate, the
overall performance of the entire trust estate shall be taken into
account.
(c)  Compensation. Each trustee shall be entitled to receive
reasonable compensation for services actually rendered to a trust.
E.   ADMINISTRATION
E-1. General Powers of Trustee. To carry out the trust purposes
but subject to any limitations stated elsewhere herein, the trustee
of each trust shall have the following powers, which may be
exercised free from court supervision, and which shall exist until
all of the trust estate has been distributed:
(a)  Trust Estate. The trustee may invest and reinvest all or
any part of the trust estate in property of any description and may
retain as a part of the trust estate any property acquired at any
time and in any manner.   Specifically, and without regard to the
provisions of any applicable state law, the trustee may retain, or
invest and reinvest in, property unproductive of income, shares of
open or closed end investment trusts or companies, wasting assets,
and any other property, regardless of location and without regard
to any requirement of diversification as to kind or amount.
(b)   Business Interests. The trustee may continue operation
of any business entity, in any business form, with all or any part
of the trust estate, and may reorganize or liquidate any such
entity at any time.
(c) Transfers, Loans. The trustee may lease, sell, transfer,
or encumber in any manner {including with purchase money mortgages)
all or any part of the trust estate, and may loan or borrow money
in any manner {including by joint and several obligations) with or
without security. Subject to the provisions of Paragraph E-3{a),
the trustee may purchase assets from the estate of a trustor and
may loan funds to the estate of a trustor at such rate of interest
and with such security as the trustee determines to be in the best
interests of the current beneficiaries of the trust.
{d) Dealings With Related Parties. The trustee may deal with
any person or entity regardless of any relationship or identity of
any trustee to or with that person or entity and may hold or invest
all or any part of the trust estate in common or undivided
interests with that person or entity.
(e) Agents, Employees. The trustee may employ and compensate
agents and other employees ~nd may delegate to them any and all
discretions and powers.
-5-
(f) Partitions, Distributions. The trustee may partition all
or any part of any interest, may pay and receive such moneys or
properties as may be necessary to equalize differences, and in so
doing (i) may make any distribution of all or any part of the trust
estate in any manner (including composing shares differently) and
(ii) may evaluate any property, which valuation shall be binding on
all beneficiaries.
(g)   Claims, Controversies.    The trustee may maintain and
defend any claim or controversy by or against the trust without the
joinder or consent of any beneficiary.
(h)    Additional Powers. In addition, the trustee shall have
all rights, privileges and powers now or hereafter granted to
trustees in Texas, including those granted under the Texas Trust
Code.     Any subsequent legislation or regulation expanding or
limiting the rights, privileges and powers granted a trustee shall
apply to all trusts hereunder unless the trustee elects not to have
such legislation or regulation apply to a particular trust by a
written instrument filed with the trust records.       However, the
provisions made for the various beneficiaries under this trust
agreement are exclusive. Any statute that purports to enlarge the
class of beneficiaries to whom distributions may be made or the
purposes for which distributions may be made shall not apply to any
trust.    All trust powers may be exercised upon such terms as the
trustee deems advisable and may affect trust properties for any
length of time regardless of the duration of the trust. Generally,
and subject only to the terms of this trust agreement, the trustee
shall hold, manage, control, use, invest, reinvest, and dispose of
the trust estate to the same extent as if the trustee were the fee
simple owner thereof.
E-2.     Principal and Income Determinations.      The receipts,
disbursements and reserves of each trust may be allocated, on a
cash or accrual basis, between principal and income in the
trustee's discretion without regard to the provisions of any
statute.    To the extent the trustee does not exercise this
discretionary power, the provisions of the Texas Trust Code shall
control.
E-3.   Restrictions on the Exercise of Certain Powers.
(a)  Dealings with Trust Estate. No power granted the trustee
shall be construed to enable any person to purchase, exchange, or
otherwise deal with or dispose of any trust estate for less than an
adequate consideration in money or money's worth or to authorize
loans to any person without adequate interest.      No part of any
trust estate may be (i) loaned to a trustor or to any spouse of a
trustor or (ii) applied to the payment of premiums on policies of
insurance on the life of a trustor or on the life of any spouse of
a trustor.
-6-
(b)  Distributions to or for Trustee. Any power to make
discretionary distributions to or for the benefit of a person who
is serving as trustee of a trust (including distributions to the
person's spouse and distributions in discharge of any legal
obligation of the person) shall be exercisable solely by the
trustee or trustees other than that person. If no other trustee is
then serving, such power shall not be exercisable.
E-4. Release and Delegations of Powers. Any power granted to a
trustee may be released, in whole or in part, temporarily or
permanently. Except as provided in Paragraph E-3, any such power
may be delegated, in whole or in part, temporarily or permanently,
to any other trustee then acting. A release or delegation shall be
by written instrument filed with the records of each trust to which
the release or delegation applies.
F.   DEFINITIONS AND GENERAL PROVISIONS
F-1. Trust Estate.   "Trust estate" means all assets, however and
whenever acquired (including income and accumulated income), which
may belong to a trust at any given time.
F-2. Descendants. "Descendants" means the legitimate children of
the person or persons designated and the legitimate lineal
descendants of such children, and includes any person adopted
before becoming age 18 and the adopted person's descendants.      A
posthumous child shall be considered as living at the death of his
parent. Whenever a distribution is to be made to the descendants
of any person, the property to be distributed shall be divided into
as many equal shares as there are living children of the person and
deceased children of the person who left descendants who are then
living.  Each living child shall take one share and the share of
each deceased child shall be divided among his then living
descendants in the same manner.   "Trusters' descendants" includes
only those persons descended from both trusters.
F-3.   Heirs.   Any distribution to be made to the "heirs" of a
person shall be made to the individuals who would have inherited
the person's personal property if the person had died intestate at
the time the distribution is to be made, domiciled in Texas and not
married, under the laws of Texas in force on the effective date of
this trust agreement, with the shares of taking determined by those
laws. However, both trusters and any spouse of a trustor shall be
deemed to have died prior to the time that any such distribution is
to be made. A distribution to "trusters' heirs" shall be made to
the heirs of Andy I. Weiner.
F-4. Internal Revenue Code.    "Internal Revenue Code" means the
Internal Revenue Code of 1986, as amended, or corresponding
provisions of any subsequent federal tax laws.
-7-
F-5. Other Terms. The use of any gender includes the other
genders, and the use of either the singular or the plural includes
the other.
F-6. Spendthrift Provision. No beneficiary shall have the power
to anticipate, encumber, or transfer his interest in any trust
estate in any manner. No part of any trust estate shall be liable
for or charged with any debts, contracts, liabilities or torts of
a beneficiary or subject to seizure or other process by any
creditor of a beneficiary.    Nothing in this paragraph shall be
construed to limit the otherwise valid exercise of a power of
appointment or right of withdrawal given by this trust agreement.
F-7. Texas Law Applies. The situs of the trusts established under
this trust agreement is Texas.     Wherever possible, the laws of
Texas shall apply to the construction, administration and validity
of each trust.
F-8. Maximum Term of Trusts. No trust shall continue for a period
longer than 21 years after the death of the last to die of trustors
and all of trustors' descendants who are living on the effective
date of this trust agreement. Any trust still in force at the end
of such period shall terminate, and the trust estate shall be
distributed to the beneficiary for whom the trust was established.
F-9.   Powers of Appointment Exercisable by Beneficiaries.       In
exercising a power of appointment given to a beneficiary by this
trust agreement, the beneficiary may appoint the property subject
to the power outright to the appointee, in trust, or to a custodian
for the appointee under the Uniform Gifts to Minors Act of any
state. If the beneficiary appoints to a custodian, he may select
the custodian. If the beneficiary appoints in trust, he may select
the trustee or trustees, may establish such administrative terms
for the trust as he deems appropriate, and may impose lawful
spendthrift restrictions.   He may give the trustee discretionary
powers over the income and principal, and may create a trust that
has several permissible distributees. He may create life interests
or other limited interests in some appointees with future interests
in favor of other appointees, may appoint different types of
interests among the appointees, and may create new powers of
appointment in a trustee or trustees or in any appointee. He may
impose lawful conditions on an appointment and,, in general, may
appoint to or among the appointees in any lawful manner.
In determining whether, in what manner and to what extent a
testamentary power of appointment has been exercised by a
beneficiary, the trustee may act in reliance upon a court order
admitting an instrument to probate as the beneficiary's last will
or an order finding that the beneficiary died intestate.     Unless
within six months after the beneficiary's death the trustee has
actual notice of the existence of proceedings to probate a will of
the beneficiary, the trustee shall assume that the beneficiary died
-8-
intestate. The foregoing provisions are intended to expedite the
prompt and efficient administration of the trust and to protect the
trustee from any action taken or distribution made in accordance
with these provisions.   Nothing in this paragraph shall limit or
qualify any power of appointment given by this trust agreement or
any right which an appointee or taker in default of appointment may
have against any person receiving a distribution from the trustee
irrespective of the place of probate or of the time of discovery of
a will exercising the power or any other action taken in the
beneficiary's estate.
G.   ACCEPTANCE BY TRUSTEE
By signing this trust agreement, the trustee (i) accepts these
trusts and all of the rights, powers and duties attached to the
office of trustee as provided herein, (ii) agrees to serve as
trustee of the Daniel Steven Weiner 1996 Trust and of any
Contingent Trusts which may be established under this trust
agreement, (iii) acknowledges receipt of the property described in
Attachment A, and (iv) agrees to hold and administer each trust
estate in accordance with the terms of this trust agreement.
This trust agreement is executed effective as of the 20th day
of March, 1996.
Andy I. Weiner, Trustor and
Trustee
Katherine Friedman Weiner,
Trustor and Trustee
-9-
ATTACHMENT A: INITIAL CONTRIBUTIONS
TO THE DANIEL STEVEN WEINER 1996 TRUST
$1.00
Andy I. Weiner, Trustor and
Trustee
Katherine Friedman Weiner,
Trustor and Trustee
3559 :painsc\0157136
-10-
FILED
10/24/201410:21:50AM
Stan Stanart
County Clerk
Harris County
PROBATE COURT 4
NO. 425,577
INRE:                                          §                  IN PROBATE COURT
§
DAVID ABRAHAM WEINER                           §                  NUMBER FOUR (4) OF
§
1994 TRUST                                     §                  HARRIS COUNTY, TEXAS
ANDY WEINER'S SECOND AMENDED CROSS-CLAIMS
AGAINST KATHERINE WARREN F/K/A KATHERINE WEINER
TO THE HONORABLE JUDGE OF SAID COURT:
Andy Weiner ("Mr. Weiner") files the following Second Amended Cross-Claim Against
Katherine F. Warren f/k/a Katherine Weiner ("Ms. Warren"), and, in support thereof,
respectfully shows the following:
I.
Overview
1.       Mr. Weiner and Ms. Warren are co-trustees of the David Abraham Weiner 1994 Trust
("David's Trust"). Mr. Weiner and Ms. Warren are likewise co-trustees of the Daniel Stephen
Weiner 1996 Trust ("Daniel's Trust").       As such, Mr. Weiner and Ms. Warren are jointly
responsible for the administration and liabilities of David's Trust and Daniel's Trust
(collectively, the "Trusts"), if any.
2.       Accordingly, Mr. Weiner files the following cross-claims against Ms. Warren:
a. Contribution;
b. Breaches of Fiduciary Duty;
c. Removal of Trustee; and
d. Tortious Interference with Administration.
II.
Factual Background
3.       On December 13, 1994, Mr. Weiner and Ms. Warren established David's Trust for the
benefit of their then-minor son, David. See David Abraham Weiner 1994 Trust agreement,
EXHIBIT
exhibitsticker.com
092865/000002
376 -1273851vl                                                                                         TAB M
attached hereto as Exhibit A and incorporated by this reference. The irrevocable trust agreement
provides that David is the primary beneficiary and Mr. Weiner and Ms. Warren are the co-
trustees.
4.       On March 11, 1996, Mr. Weiner and Ms. Warren established Daniel's Trust for the
benefit of their then-minor son, Daniel S. Weiner ("Daniel"). See Daniel Steven Weiner 1996
Trust, attached hereto as Exhibit B and incorporated by this reference. The irrevocable trust
agreement provides that Daniel is the primary beneficiary and Mr. Weiner and Ms. Warren are
the original co-trustees. Exhibit B.
5.       Both David's Trust agreement and Daniel's Trust agreement specifically provide that:
a.      Ms. Warren and Mr. Weiner are to act jointly as co-trustees;
b.      A trustee shall not be held liable for any act or omission, except in the case of
gross negligence, bad faith or fraud; and
c.      The overall performance of the Trust shall be taken into account when assessing
the propriety of any investment of the Trust.
See Exhibits A and B.
6.       Additionally, the agreements of the Trusts grant Ms. Warren and Mr. Weiner, as co-
1
trustees of the Trusts, the general powers to: (i) invest and reinvest the Trust assets    ;   (ii) lease,
sell, transfer or encumber, in any manner, all or any part of the Trust 2 ; and (iii) loan or borrow
money from the Trust, in any manner. 3
7.       Ms. Warren and David's original lawsuit, filed solely against Mr. Weiner, sought an
order from this Court to either distribute David's Trust funds to David free of trust or,
alternatively, to award Ms. Warren sole and exclusive control over a new account (a Uniform
Transfers to Minors Act account created for David's benefit), even though the Trust agreement
1
Exhibit A§ E-l(a); Exhibit B § E-l(a).
2
Exhibit A§ E-l(c); Exhibit B § E·l(a).
3
Exhibit A§ E-l(c); Exhibit B § E-l(a).
2
092865/000002
376- 127385lvl
and the Divorce Decree provide otherwise. In the original Petition, Ms. Warren and David stated
that Ms. Warren would submit an accounting and sought her discharge from any liabilities
relating to the Trust.
8.       Since originally filed, counsel for Ms. Warren and David has filed an amended petition
that now names only David as the Petitioner, ·and Mr. Weiner and Ms. Warren as Respondents.
In the amended petition, David instead sought to be his own trustee.
9.       David testified in his partial deposition that he is not aware of any breaches of trust by
either Mr. Weiner or Ms. Warren. Irrespective of this testimony under oath, David filed yet
another amended petition asserting various claims solely against Mr. Weiner, even though both
Mr. Weiner and Ms. Warren have served as co-trustees since the inception of David's Trust.
10.      Since the filing of David's second amended petition, Daniel, David's younger brother,
4
filed an original petition in intervention in this proceeding.
II.      As co-trustees of the Trust, Mr. Weiner and Ms. Warren are jointly responsible for the
administration of the Trust. Accordingly, in the event damages are assessed against Mr. Weiner
due to his role as co-trustee of David's Trust and/or Daniel's Trust, Ms. Warren is responsible
for 50% of those damages, in addition to 50% of Mr. Weiner's attorneys' fees and costs incurred
in defending this action.
III.
Cross-Claims Against Katherine Warren
12.      Mr. Weiner incorporates by reference the factual allegations contained within the
preceding Paragraphs 1 through 11.
4
Mr. Weiner does not concede that Daniel has standing to bring any claims against Mr. Weiner in this proceeding
nor does Mr. Weiner agree with Daniel's alleged legal basis to intervene in the above-referenced proceeding.
3
092865/000002
376- 127385lvl
A.       Cross-Claim for Contribution.
13.     In David's Second Amended Petition, he seeks to hold Mr. Weiner liable for breaches of
fiduciary duty in his capacity as David's Trust. See Second Amended Petition at         ~14,    on file
with this Court.
14.     Likewise, in Daniel's Petition in Intervention, Daniel seeks to hold Mr. Weiner liable for
breaches of fiduciary duty in his capacity as co-trustee of Daniel's Trust.         See Petition in
Intervention at ~34, on file with this Court.
15.     It is undisputed that Mr. Weiner and Ms. Warren were named as initial co-trustees of
both David's Trust and Daniel's Trust. Pursuant to Texas Property (Trust) Code, co-trustees are
to act jointly in administering the Trust. TEX. PROP. CODE § 113.085. Ms. Warren has failed to
jointly administer the Trusts with Mr. Weiner.
16.      Further, Ms. Warren has failed to delegate her powers or duties as co-trustee of the Trusts
to Mr. Weiner. Pursuant to Texas Property (Trust) Code Section 113.085(c):
(c)      A co-trustee shall participate in the performance of a trustee's
function unless the co-trustee:
( 1) is unavailable to perform the function because of absence,
illness, disqualification under other law, or other temporary incapacity; or
(2) has delegated the performance of the function to another
trustee in accordance with the terms of the trust or applicable law, has
communicated the delegation to all other co-trustees, and has filed the
delegation in the records of the trust.
TEX. PROP. CODE§ 113.085 (c) (emphasis added).
17.      And, the Trusts expressly provide that a co-trustee may only release or delegate her
powers as follows:
E-4. Release and Delegations of Powers. Any power granted to a trustee
may be released, in whole or in part, temporarily or permanently. Except
as provided in Paragraph E-3, any such power may be delegated, in whole
or in part, temporarily or permanently, to any other trustee then acting. A
4
092865/000002
376- 127385Jvl
1:0                    release or delegation shall be by written instrument filed with the records
of each trust to which the release or delegation applies.
See Exhibit A § E-4 (emphasis added); Exhibit B § E-4 (emphasis added).
18.       Ms. Warren never communicated any intent to delegate her co-trustee duties to Mr.
Weiner nor has she filed a written instrument delegating or releasing any powers to Mr. Weiner,
as required by the terms of the Trusts. In short, there is no evidence that Ms. Warren has
delegated the performance of her co-trustee functions to Mr. Weiner.          TEX. PROP. CODE §
113.085(c)(2).
19.       Mr. Weiner seeks to hold Ms. Warren responsible for 50% of any liabilities assessed
against the Trusts and/or him relating to the actions sought by any beneficiary, including, but not
limited to, holding Ms. Warren liable for 50% of the attorneys' fees, accountant fees, and costs
incurred by Mr. Weiner as a result ofthe above-referenced litigation.
20.       Thus, pursuant to Section 33.016 of the Texas Civil Practice & Remedies Code, Mr.
Weiner asserts a contribution claim against Ms. Warren for any liability that may be imposed on
him pursuant to the breach of fiduciary duty claims brought by David and/or Daniel in the instant
litigation.
B.     Cross-Claim for Breaches of Fiduciary Duty.
21.       Ms. Warren, as co-trustee, serves in various fiduciary capacities for David and Daniel.
Trustees are held to a "very high and very strict standard of conduct which equity demands".
Slay v. Burnett's Trust, 187 S.W.2d 377,387-88 (Tex. 1945).
22. _ As a fiduciary and co-trustee of the Trusts, Ms. Warren has breached the following
duties:
a. Duty of loyalty;
b. Duty of competence;
c. Duty of competence by failing to administer the Trusts pursuant to their terms;
5
092865/000002
376- 1273851v1
d. Duty of full disclosure;
e. Duty to act with integrity of the strictest kind;
f.      Duty to act with due diligence;
g. Duty to exercise reasonable discretion; and
h. Duty to act as a reasonably prudent person.
23.      Ms. Warren breached her fiduciary duties, which resulted in injury.
24.      Thus, in accordance with recognized principles of fiduciary law, Mr. Weiner seeks an
award of actual damages and, since Ms. Warren's conduct was intentional, punitive damages.
c.         Cross-Claim for the Removal of Ms. Warren as Trustee.
25.      Ms. Warren, through her hostile actions and position of influence, has turned both Daniel
and David against their father, Mr. Weiner. Despite Mr. Weiner's valiant attempts, Ms. Warren
has failed and refused to engage with Mr. Weiner to administer the Trusts.
26.      By these acts, Ms. Warren has created a hostile environment for David, Daniel and Mr.
Weiner.
27.      Accordingly, Mr. Weiner files this cross-claim for the removal of Ms. Warren as trustee
of the Trusts.
D.         Cross-Claim for Tortious Interference with Administration.
28.      Through her actions, Ms. Warren has tortiously interfered with Mr. Weiner's ability to
properly administer the Trusts. Ms. Warren has interfered with the administration of the Trusts
by initiating unnecessary litigious proceedings against Mr. Weiner, by and through David and
Daniel, and continuously failing to act in the best interests of David and Daniel, to the detriment
ofMr. Weiner.
29.      Such acts have proximately caused and prevented and interfered with the ability of Mr.
Weiner to properly administer Decedent's Estate.
6
092865/000002
376- 1273851vl                  ..
30.      Ms. Warren's acts have resulted in the incurrence of unnecessary expenses, damages or
loss to the Trusts, for which recovery from her is proper in an amount within the jurisdictional
c~.o
limits of the Court.
31.      Mr. Weiner seeks actual and punitive damages for Ms. Warren's tortious interference with
administration and for her intentional and malicious conduct.
IV.
Damages and Other Relief Requested
32.      Mr. Weiner re-alleges and incorporates by reference the foregoing background
allegations and causes of action in support of the damages sought below.
A.      Actual Damages.
33.      Based on the acts and occurrences set forth in the preceding paragraphs, Ms. Warren
breached her fiduciary duties, proximately causing significant loss to the Trusts and actual
damages to the Trusts.
34.      As a result of Ms. Warren's breaches of fiduciary duties, tortious interference with
administration, and bad acts constituting her removal as trustee of the Trusts, which were the
proximate cause of damages to Mr. Weiner and the Trusts, Mr. Weiner is entitled to damages
from Ms. Warren.
B.      Punitive Damages.
35.      As a result of Ms. Warren's intentional and willful breaches of fiduciary duty and tortious
interference with administration, Mr. Weiner seeks punitive damages from Ms. Warren.
C.      Additional Relief Sought.
36.      Mr. Weiner is entitled to pre-judgment and post-judgment interest and costs of court in
all amounts awarded hereunder as allowed by law. He specifically sues for recovery of pre-
judgment and post-judgment interest and recovery of costs of court under the applicable
7
092865/000002
376- 1273851v1
provisions ofthe laws ofthe State ofTexas.
37.      With regard to claims by David and/or related to David's Trust, Mr. Weiner, individually
and as co-trustee, respectfully requests the following relief:
a.      To the extent of any claims of David, Ms. Warren shall be held responsible for all
actions and alleged inactions of the trustees;
I   '\1'            b.      To the extent of any claims of David, Ms. Warren shall be held equally liable for
all claimed damages and relief sought by David, as finally determined, if any;
c.      Ms. Warren shall be held liable for any and all violations of David's Trust
agreement, including any plan or scheme to collude with David;
d.      Ms. Warren shall be held equally responsible for the preparation and submission
of any accounting determined to be due and personally bear one-half of the costs
of the accounting pursuant to § 113.151 of the Texas Trust Code; and
e.      Ms. Warren shall be ordered to pay one-half of Mr. Weiner's attorneys' fees and
costs incurred as a result of defending the lawsuit.
38.      With regard to claims by Daniel and/or related to Daniel's Trust, Mr. Weiner,
individually and as co-trustee, respectfully requests the following relief:
a.      To the extent any claims of Daniel are validly asserted in this proceeding, Ms.
Warren shall be held responsible for all actions and alleged inactions of the
trustees;
b.      To the extent any claims of Daniel are validly asserted in this proceeding, Ms.
Warren shall be held equally liable for all claimed damages and relief sought by
Daniel, as finally determined, if any;
c.      Ms. Warren shall be held liable for any and all violations of Daniel's Trust
agreement, including any plan or scheme to collude with Daniel;
d.      Ms. Warren shall be held equally responsible for the preparation and submission
of any accounting determined to be due, and personally bear one-half of the costs
ofthe accounting pursuant to §113.151 ofthe Texas Trust Code; and
e.      Ms. Warren shall be ordered to pay one-half of Mr. Weiner's attorneys' fees and
costs incurred as a result of defending the lawsuit.
8
092865/000002
376- 127385lvl
WHEREFORE, Andy Weiner respectfully requests that this Court grant the above-
requested relief, and for such other and further relief as to which he may show himself justly
entitled to receive.
Respectfully submitted,
CRAIN, CATON & JAMES,
A PROFESSIONAL CORPORATION
By: Is/ Kathleen Tanner Beduze
SARAH PATEL PACHECO
(TBA # 00788164)
KATHLEEN TANNER BEDUZE
(TBA # 24052205)
1401 McKinney, 1ih Floor
Houston, Texas 770 I 0
(713) 658-2323
(713) 658-192I (Facsimile)
Attorneys for Andy Weiner
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been forwarded to:
Carol A. Cantrell                                    Thomas R. Conner
Cantrell & Cowan, PLLC                               Conner & Lindamood, P.C.
3700 Buffalo Speedway, Suite 520                     1221 Lamar, Suite I 010
Houston, Texas 77098                                 Houston, Texas 770 I 0
Facsimile: (713) 333-0550                            Facsimile: (7I3) 654-8I 15
bye-file and/or facsimile on the 24th day of October, 2014.
Is/ Kathleen Tanner Beduze
KATHLEEN TANNER BEDUZE
9
092865/000002
376- 127385Jvl
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~;~·                                   DAVID ABIWWf WEINBR 1994 TRUS'l'
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(~)                        By this trust &~Jreeaent, Ancty I. Weiner and Katherine Friacbllan
Weiner, husband. aDd wfte, both Qf Rarria county, Texas, 'as
i:~                 11 truatora,• establish the David Abrahllll Weiner 1994 Trust tor the
!''"·•,             l:len'efit of their son, David Abralla• Weiner ("David•). Tz:usto:t'S
~\i                 grant, aseiCJ11 and cleliver to· Andy I. We,l.ner and Katherine FrieC!It4n
~, .,,!             Weiner; both ot Harris county, Texae, aa ntrusteoa,• the property
(";
````                described. in Attacbaent A.. Attactuaent A, which ia captione\\
:j     "Initia~ Contributions to tbe David Abr.,halll Wei,nar 1994 'l'rust, '' is
incorporated by reference as a pa%t of this trust a~eemen~.
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N
c      This truet agrea111ent and the trusts e1tabliahed by it are
c...   irrevocable. No person shall have the right to revoke or amend
this trust aqrae.ent or any of ita provisions. However, ptoperty
acceptable to the trustee may be added to any trust from time to
tt.e in the future by,truators or by any other person (including
aclclitiona pursuant to the prcrvialons of tha last will of any
person).                                               ·
All references to "trustee" shall ~tar to the parson or persons
then acting as aucb.
A.   PanwtY 'J'ROST
A-1. giatdhutigng. The inCOIIe. of the trust lllllY be acCNIIIulatecl and
ratalned, in whole or in part, or tha trustee 111ay ~1atr1bute to
David, from tilD6 to tine, so much or all of tha trust ••~ate as, in
tbe trustee'& discretion, is in David's beat interests.
A-2. Termination. David may withdraw any part or all        of
the tru'st
estate within 60 days after he l:leccmas age 21, and may thereby
terminate th~ trust as t~ the part withdrawn. EXercise of this
withdrawal right ohall bfi by one or liore written insl::rlilaenta
delivered to the trustee within ~he 60-cl~y period. It or' to the
extent that Davie! does not exercise this withdrawal riqht, the
trust shall continue until David becomes age 30 or dies before that
aqe, at whidh.time tbe trust estate sball be distributed:
(a) To David.
(b) If David is not``en liying: to such one or more persons,
corporations or organi1at1ons (includi~David's estate), as ·Davi~
EXHIBIT A
appoints by a Will which specifically raters to this power ot
appointment. lf or to the extant that David does not effectively
exercise this power of appolnt1Dant, the tnst estate shall be
diatr~l1Ute4:
(1)   To David's deaoendanta.
(2) lf nona of Davlc!'a descendants ia than living, to
trusters ' clascendante.
(3) If none of truatora' descendants ia then living, to
trustor&' heirs.
A-3 • P!vaaot of '1'1¥11•  It David's will contains no contrary
direct:ons, tbe tnatee shall pay troa·tbe trust estate the entire
increment in taxes payable by reason of David's death (including
any interest or penalties thereon) to the extant (if any) that the
total of such taxes is vreater than would have bean iapoead if no
portion of tho trust estate vera taken into account in datermininv
such taxes.
B,   CON'l'XBGEH'l' TRUSTS
B-1. 'l'£Usts Bstablisbad, Any portion of a trust estate upon the
trust's teminat~on (other tban a portion withdrawn by David
pursuant ~ Paraqraph l-2) whicb would be distributable to a
beneficiary who is under ago 30 or to a beneficia~ who ie under a
legal diaability instead shall be distributed to the trustee of a
contingent Trust (unless otherwise directed by the vali4 exercise
ot a power of appointment).            Each beneficiary'• portion eo
distributed shall be held and administered as the initial t~ot
estate ot a separate trust tor ~· beneficiary. ·However, if a
Contingent Truat ia already in a¥iatence tor that beneficiary, any
additional portion to be distributed to the trustee of a Contingent
'l':t'\l&t tor the benaticiary shall be acldad to tho trust estate of the
ex1stin9 contingent Trust •
.8-2. ~ist;ibutlona, The inc0111e of each contingent Trust may be
accumulated and retained, in whole or in part, or the trustee may
distribute to the beneficiary for whom the trust was established,
from time to time, so mucb or all. of the trust estate ae, in the
trustee's discretion, is in the beneficiary's best interests.
B-3. Tftrmination• Eecb Contingent Trust shall terminate when the
beneficiary for whom the trust was established has beco•• aqe 30
-:z-
and is under no leqal disability or upon tho benoficia~'a earlier
death. Opon .termination, tho tru~t estate shall be distributed:
(a)   To the beneficiary.
(b) If the beneficiary is not than livinq, to sucb one or
mora persona, oorpo-rationa or orvanlzatlona aa tba beneficiary
appointe by a will which apeaiflaalli refers to this power of
appointment.   If none of the benaUc ary'a cleacendants is then
living, this power may not be exercised in favor or the
...   banetioiary, the benaticiary'a aatate, the beneficiary's creditors
or the creditors of the beneficiary's estate. It or to the extent
'
(\;   that the beneficiary does not effectively exercise tbis power or
appointment, the trust estate shall be distributed:
(l)         To the beneficiary's descendants.
(2)   If nona of the beneficiary's cleacendanta is then
livinq, to the descendants of the beneficiary's nearest ancestor
who was one of truatora' deacandant$ and who haa descendants then
living.
(J)   It none ot these persona is then Uvinq, to
trustor&' descendants.
(4) If none of trustor~' descendants is then living, to
trusto:rs' bel.ra.
C,   DISTRIBU'l'IONS
C-1. plat£ibftipnP tR qr for Banafigiariaa. OU:ring the tara of a
trust, any dstri.bution to be made to a banatioiary t:roa the t:ruat
may be 'ID&de (1} to the beneficiary, (11) if the benefioia:ry ia
unda:r a :Laqal disability or 1! the trustee·· determines tbat, the
beneticla:ry ie unable to properly· manage bia affaire, to a person
furnbbinq support, aaintenance or education tor the beneficiary or
with 1o1h011 tbe beneficiary ia residinCJ, for expancUtu:ra on the
benetic1ary'a behalf, or (111) to a custodian for a mino~
beneficiary, as selected by the trustee, under the Uniform Gifts to
Minors Act of any state. Alternatively, the trustee aay otherwise
apply all o:r a part of the distribution tor the benaticiary'a
bena.tit. Ho1o1ever, no such dietribUtion shall be made to a trustor,
to any spouse of a trustor, or in any manner that disch•rges a
leqal obligation (including an oblivation of suppor~) of a t:rusto:r
or any. spouse of a trustor. AnY .distribution under -this paragraph
shall be a full discharge of the trustee with :respect thereto.-
;
•·                     -:J-
C-2. p11t Interflt! of 8enafic1an, In lllakinq distributions in the
"best interests• of a beneficiary, tbe txuetee aay consider the aqe
or tbe beneficiary, the coats of the beneficiary'• aupport,
lll&ihtenanca, ecluc:ation ani! c0111tort without regard to any other
resource• available to the benlfficiary tor thaae P\UPO&ea, the
effect or any cU.atribution upon the incoaa and tranater tax
liability of the beneficiary or of the truat, enl1 any other tactora
deemed relevant by the trustee,
O.   OFFICE OP TRUSTEE
D-1. gucseasgr 'l'ruatee. Cp-Trvstee, The following provisions shall
apply to each separate truat established under this trust
agreamontt                 ·
(a) guc;:caupr Trustee, Should Andy I. Wainer or Xathadrie
Friedman Weiner cease to act as truataa, for any reason, the one
reaaining ahall continue to act ea trustee. Should both. Andy I.
Wainer and Xttharine Friea.an Wainer cease to oct as trustees, for
any reason, tn1atora appoint Bayle Wainer Drubel as successor
trustee.
(b) Appointmtnl; pt suc;gegor rryatt• by Trn•tr•· At any time
after qualify1n9 as trustee, any trustee may appo nt a successor
trustee to'act ln his place, either i~ediately or in the ruture
upon any stated continqenoy, and aoy thereby euppleaent the
provisions of aUbparagreph (a).
(c) 6J)ppintmant of suqugsgr Tr»Dt•• bll Benofigiariaa. I f at
any time there is no trustee actin~ and none bas been appoint~d, a
majority of the benef1o1ades (acting through the llenefialary's
natural or legal guordian or leqal repreaentative, in the case of
a beneficiary under a legal disability) who might then ba entitled
to receive a distribution from the trust estate shall appoint a
successor trustee.
(d) AppginQ!ent pC Co-Trustee,         The trustee (ectinq
unanimoualy if more than one) may appoint one or more co-trustees.
(e) lfbo Kay Be Apppint;ed. A successor tru•tee or co-trustee
may be any individual, bank or trust company and may be domioilea
anywhere. However, neither a trustor aor any spouse Df a trustor
may be appointed ae trustee.
(f) ngepdU[B for Appoint;mant;. Appointment shall be ude by
written instrument filed with the trust records.         Any such
appointment ••Y be changed or nvoJced prior to tbe date it becooa
effective.   Any such appointment •ay be limited in any manner
daeaed advisable by the person making the appointment, includinq,
-4-
tor exuple., restricting the power over diatri:butiona aa neoeeaary
to avoid the 1JDpO&it1cn of any tax upon the tn.et, the BFpointee or
the appointee'& estate.
0
(,\)      D-2. Raaiqnation of Trustee, A trustee may reaiqn fro~ a trust
·. .      without the naoees ty of eny court proceeding upon meeting theaa
r  ·:~
conditional
(a) ~. At least 30 daya• written notice          (if not waived)
shall be given to each beneficiary Wbo might then     be entitled to
receive a diatribution troa the ~rust estate. rt a    banefiolary !a
unde~ a legal disability, notioa eball be given to    (or waived by)
the baneficiary•a natural or laqal guardian.
(b) . Accountinq, t f and to the extent required by tba
successor trustee an acoovntinq tor tba adlllinistration ot the
trust aball be given to the auocesaor 1:%ustaa.     The suoceseor
trustee shall be tully protected in relying upon aucb accounting.
D-3. Rights and Liabilities,
(a) 1pn4 Not Required.      Ho b0n4 or other security shall be
required ot any trustee.
(b) Liahilities. This aqrae111ent shall always be construed in
favor of the validity of any act by or OJIJ.aeion ot any trustee, A
trustee shall not be liable tor any aot or omission exospt in the
case of vroee neliJlige.nca, .bact faith or traucl. specifically, in
assessing the propriety of any investment of a trust estate, the
overall performance of the entire trust estate shall be taken into
account~
(o) epmqgnsatiqp. laah trustee ahall be entitled to receive
reasonable compensation for services actually rendered to a trust.
£,   ADMINISTRATION
2•1, Ganaril Ppwarg pf TXu&tte, To carry out the trust purposes,
but subject to any limitations stated aleeware herein, the trustee
ot each trust sball havs tbe rolloving pavers, wbich uy be
exeroiaed free from court aupervision, and which shall exist until
all of the truat estate bas been distributed:
(a) :l:ru•t lqJ;.ata, The trustee NY invest and reLnvaet all· or
any part of the trust estate in property of any daso.ri;pticm and may
retain as a part of tba trust estate any ~roperty acquired at any
time and in any manner. Specifically, and without regard.~o the
-5-
·proviaions of any applicable state law, ths t~atea .ay retain, or
invest and reinvest in, property unproductiva of income, ebarae of
open or cloaad and invaatmant t~ta or ca.paniae, wasting aaaate,
and any otbar property, regardless of location and without regard
to any requirement of divarslfication as to kind or amount.
(b) Buainaaa Xptaraata, The t~stea may continue operation
of any bueinaea entity, in any business for., with all or any part
of the t~at estate, and may reo;1:9anhe or liquidate any such
entity at any time.
(o) Transfers. Leana. The trustee uy lease, sell, transfer,
or encumber in any 11anner (includ.tnv with purcbaea 111oney aortvavea)
all or any part of the t~st estate, and aay loan or borrow money
in any aanner (includlnt by joint and a.veral obl1qat1one) w1tb or
without eecurity. Subject to the provisions of Paragraph E-J(a),
the t~stee aay purchase assets froa the estate of a trustor and
may loan funds to the estate of a truator at such rata of interest
and with such security ae the ~stee deter111inea to be in the beet
interests of the current beneficiariee of the t~et,
(d)  Dealinqa With Balata4 Part:l.ea, The trustee uy deal with
any peraon or entity reqardleaa of any relationship or identity of
any t~stoe to or with that peraon or e~tity and may bold or invest
all or any part ot the trust estate in common or undivided
interest& with that parson or entity.
(e) Agents. E:mployeea, 'l'he trustee may employ and compensate
aqents and other eaployaea and may delegate to them any and all
discret1onu and powers.
(f) Partitigna. piatr!butigna, The trustee 111ay partition all
or any part or any interest, may pay and receive auoh moneys or
properties as may be naaeaaary to equalize ditferencea, and in so
doing ( 1) may aaka any distribution of all or any part of tbe trust
estate in any manner (including coaposinq shares difterently) and
(ii) may evaluate any property, wllich valuation shall be binding on
all beneficiariaa.
(g) SUims. cgntJ>oyeraies, The trustee lllllY naintain and
det:end any claim or controversy by or aqainat tha trust without t:be
joinder or consent of any beneficiary.
(h)   Aaditipfal Peyara. In addition, the t~atee shall have
all riqhts, privleqea and powers now or hereafter granted to
t~steea in Texas, 1nclud1nt those granted under the Texas ~at
Code.     Any subsequent legislation or requlation expandinq or
limiting the rights, privileges and powers qranted a trustee shall
apply to all trusts hereunder unless the trustee elects not to bava
such legislation or requlation apply to a particular t~at by a
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written lnatrulllent filed with tba trust recorda.         However, the
j``r                   provielons uade for the various beneficiaries under thia trust
a;reuent are excluaive. Any atatu~a that pu.q10rta to enlarge the
``·rn~
class of beneficiaries to whom distributions may ba made or the
..   ``:``,,
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purposes for which distributions may be made shall not apply to any
trust. All trust povere may be exercised upon auoh teTaa as the
(~\!                   trustee dee``~e adviaule and 11ay afteot truat properties tor any
r··,,                  lenqth of ti111e l'ega:rdleaa of the duration of the ti'U&t. Generally,
and aubjeot only to the tei'DB of this trust agreement, the truateo
("''
.,\j           ('l'j   ehell hold, menage, control, usa, invest, reinvest, end diaposa of
r::~)                  the truat estate to the aa111e extent as if tha trustee were the faa
:;m~IJI
c.      simple owner thereof.
('~
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c       1•2, f[inaipsl   and rncope Deterninationa,       The receipts,
diabursenenta and reserves of each trust may ba allocated, on a
0
cash or acoruel basis, between principal and inoone in · tbe
trustee's cSJ.aoretion without re;ard to the provisions of any
statute.   To the extent the trustee does not axeroiae this
discretionary power, the proviaions of the Texas 7rust Coda shall
oontrol.
E-3. Bastrictions pn   th•   Jxarqlaa gf Cartain pqwera.
(a) Daglinqa yith Truat; 1191jata, No power granted tha trustee
shall be constzuad to enable any person to purchase, exchanqa, or
othe~isa deal witb or dispose of any trust estate for lea• than an
adequate consideration in money or 111onay•a worth or to autborila
loans to any person without adequate interest. No pal't of any
trust estate may be (i) loaned to a trustor or to any spouea of a
trustor or (li) applied to tba payment of premiums on policies of
insuranc:e on the llfa of a trustor or on the life ot any spouse of
a trustor.
(b) piatributiong tg or fpr TrU•tga.        Any power to mltlte
discretionary distributions to or tor the benefit of a person who
is serving as trustee of a trust (including distributions to tbe
parson's spouse and distribUtions in discha~e ot any legal
obligation of the person) shall be exercisable solely by tha
trustee or trustees other than that person. If no other trustee 1a
then serving, such power shall net be exercisable.
E-4 , Bglaase and Dalagatlgns gf Power&. AnY power granted to a
trustee . .y be released, in whole or in part, temporarily or
permane~tly. Except as provided in Paraqraph 1•3 1 any such power
111ay be delegated, in whole or in part, teaporarily or permanently,
to any other trustee then actinq. A release or delegation shall be
-7-
by written instrument Uled with the records ot each truet to whicb
i~
the release or ~•legation applies.
F.   DBPINITIONS AND CEHBRAL PROVISIONS
r-1. Trust Batate.   11.Trust estate11 means all assets, however and
Wbenever·acquired (inoludinv income and accumulated income), which
may belong to a trust at any given time.
F-2. Deapqnaanta. uoeaoandants" means tbe legitimate children of
the person or persona designated and the legitimate lineal
desoendanta ot ailoh children 1 and inclu!Sea any person adopte4
betore becoming age 18 and the adopted person's deacandanta. A
posthumous child shall ~• conJidered aa livi~q at the death pt bis
parant, Whenever a distribution is to be ~ads to the descendants
of any person, the property to be distributed shall be divided into
ae many· equal shares as there a¥a livinv children ot the person and
deceased children of tha person who left daacendanta who are tban
livinq. Bacb_liv1nq child shall take one ahara and the share of
eacb deceased child shall be divided a11ang his than living
deacendanta in the same manner. llftUatora' descendants" include•
only those persona descended from both trusters.
r-3, IIW.!• Any distribution to .be made to !:he "heirs" ot a person
shall be made to the individuals who would have inherited the
parson's personal property if the parson nad died intestate at the
time the distribution ia to be made, dOIIioiled 1n Texas and not
married, under the laws of ~xaa in torca on tba affective data of
this trust agreement, with the ebarea of taking datanained by those
laws. However, both trusters and any spouse ot a trustor aball be
detllllad to have died pdor to the t:iH that any such diStribution is
to be made. A distribution to •trusters• heirs" shall be made to
the hairs of Andy I. Weiner.
r-4. Igtprnal Rayenua  cQde,   ''Internal Revenue Code" meana the
Intlernal Revenue Code of 1!184S, ae a11ended, or corresponding
provisions of any subsequent federal tax laws.
P-!5, Qthar Tams.    The uae· of any gander .includes the o~er
genders, and the use of either the sin9Ul&r or the pl~ral includes
the other.
F-6. spendtbrd'.ft rrgyiaipn,   No beneficiary _shall have the power to
anticipate, anoumber, or transfer hie interest in any trust estate
-a-
in any 11\aMer. No part of any trust estate shall be lial»le tor or
cbarqed w11;.h any debt&, contracts, liabilitlea or torte ot a
beneficiary or subject to seizure or other prooeae by any creditor
of a beneficiary. Nothing in this paraqraph ahall be construed to
limit the otherwise valid exercise ot a power of appoint.ent or
riqht ot withdrawal qiven by this trust aqraement.
F-7. TJ!¥11 L&Y Applian, Tho altus ot the trusts established under
this trust aqreuant ie '.rexaa. Whuever poseil:ll.a, the laws ot
Texas shall apply to the construction, administration and validity
of each trust.
:r-e. Maximum :ram of 'l"n!•tl. No t¥'\Jat shall continue for a period
longer than 21 yura aftezo tbe death of the l.aat to die of truetora
and all ot trusters' descendants who are living on the effective
date of tbis trust agreeaent. Any trust still in force at the and
of such period shall tandnate, and the trust estate shall be
distributed to the beneficiary tor whom the trust was establiabad.
~9.                                                             •   ~
exerois nt a power of appointmant given to a beneficiary by tbia
trust aqreament, the beneficiary u.y appoint the property sU])ject
to the power outright to the appointee, in trust, or to a cuetodisn
for the appointee uncter the Unifol'll Gifts to Minors Act of any
state. If the beneficiary appointe to a custodian, be may aaleat
the custodian. If the beneficiary appointe in t.Z'UIIt, be III&Y aaleot
the trustee or trustees, 111ay establish such administrative ter.s
tor the trust· liB be deel'ls appropriate, and 11ay .llllpoaa lawtul
spendthrift restrictions. Ra may give the trgstae discretionary
powers over the income end principal, and nay create a trust that
bas several permissible cUatributeea. He IIIBY create life interests
or cthor limited interests in soaa appointeea with future interests
in tavor of other appointees, 11ay appoint different typea of
interests al'Gong the appointees, and     ••Y create new powers of
appointment in a trustee or trustees or in any appointee. Ka may
impoaa lawful conditions on an appointment and, in qaneral, may
appoint to or among the appointees in any lawfUl ~anner.
In deter``ininq whether~ .Ln what unnsr and to what extent 11
testamentary power of appointl'lant haa been exercised by a
beneficiary, the truataa nay act in reliance upon a court order
admitting an instruaent to probate as the banaficiar.f's last will
or an order finding that the benatioiary died intestate. Unless
within six 111ontlis attal' the benaUoiery's death the trustee baa
actual notice of the exiatlnca of proceedin98 to probate a will o:
the beneficiary, the trustee ahall assume that the banef1ciaey 41ed
intestate. The foregoing provisions are intended to expeditelthe
proapt and effiolent ad111lniatrat1on of the trust and to protect t'he
trustee from anr action taken or distribution •ade in accordance
with these prov aions. Nothing in tbia paragraph shall limit or
quality any power of appointaant given by this tJ:Uat ap-euant or
any rigbtwhich an appointee or taker·in default ot appointment aay
have atainat any parson reoaivin; a distribution from the tJ:Uatae
irrespective of the place of probata or of the time of diacovazy of
a will axeroialng the powor or any othor action taken in tba
benaticiary'a estate.
G, ACCEP'l'AlfCE BY TROSTU
By  aiqning this trust agraelllant, the tnstee (1) accepts these
trusts aftd all of the rights, powers and duties attached to the
office of trustee as prov14ed herein, (11) aqreea to serve ae
trustee of the David Abraham Mainer 1994 Truat and of any
contingent Truata which may be astabliahad under thia truet
agreement, (iii) acknowledqaa receipt of'tha property deacribed in
Attac~ent A, and (iv) aqreoo to bold and administer each trust
estate in aooordanoa with the teraa of this trust aqraament.
This trust aqroament ia executed affective as of the
1.L day of   ~cc'1JSC            , 1994.
``w    ~L!HaWe ft(..``..:._
erne p;ediftan ner            I
Trustor ana Trustee
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A'r'l'ACHMEN'l' A: INITIAL CON'I!RIBU't'IONS
'1'0 'J'HE DAVID ABlWlAJf WEINER 1994 TRUS't'
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't'rustor and Trustee
-11·
STAT~     OP   TEXAS           I
COU'N'l'Y OP JWUliS            I
iii
~,          Before ••• ~e qndersiqned authority, on tbis d4y personally
·.~    appeared An4y I. we.U.ar, known to- to :be the paraon ~osa 'n&IDa La
0      s\lbsari))e~ to the tareqoing inatrwaent, and .acknowledged to • that
he executed the same for tbe purposes and consideration therein
expreaaed, and in tha capacity thnain stated,
0              Givan under my hand and seal this ~day ot )c.ccm'J2c.(
1994.
N
0
the State ot fexaa
STATE     OF TEXAS
COUN'l'Y OP BARRIS
•
I
Before me, the undersigned authority, on this day personally
appeared Katharine ~iedaan Wainer, known to me to be the person
whose nama ia allbaodbed to the- toreg'oing instrwaent, and
acknowledged to me that she executed the .... tor the purposes and
consideration therein expreased, and in the capacity therein
stated.
Given under my hand and seal this 13~h day of!     )>ucmbe.r
1994.
Noablo n end         fOJ:
the state of Texas
-12-
I
I
By this- trust egra8111BDt, Andy :t. WeiDer IUid l!tatharj,.na Prle4miUI
W.J.11er, llasbancl IUicJ wife, lloJ:!I ol llazris COW'!i:l'1 Texas, as
•trustors,• establish the Daniel steven Wain~ 1tt~ ~t· for the
benef.i~  of ~air son, Daniel steyun Weine ("Da11ie111 ) , horn
Kecb 11, 1tt6.       'rrUstora grant, a . .i!Pl and d~ivar to Andy I.
Weiner IUid Jtatllarina l"riedman weiner, both of Ban:ia camty, Texas,
as "trustees," the property describ.ed in :A.ttaohlaent .11. Jlttacblllent
A, which is captioned •xnitial contributton. to the DIUiial steven
Weiner 19945 TrUst," is incorporated by reference as a part: of tbb
tr1,1St agre-ent.
This trust agreement and tbe. t:rust•. aata:blisheci by it are
irrevopabla. No person aball have the right to ~eVOke or amend
this tzwst a;reuant or llJIY of "ita provisions. BoWI!IV8X, property
soceptahle to the trustee llliy be ad4e4 to any trust tr= tillle to
tillle in the tut~e by tzustw:a cr by any other peraon (includinq
additions purauant to the provisions of the last vill of. any
person).
All re.ferences to •triUitee" shall refer to the person or
parsons then acting aa sucb.
A.    PJUHARY TRUS'r
A•1,   piatributione. Tbe inccae of the trust may be aoogmulated
amd retainee!, in nola or in part, or the tzustee JDAy 4iatril1Ute to
Daniel, frC'II tillle to time, so liNCh or all ot the trust estate as,
in the t:J:Ustee 1 a discretion, is in Daniel's best inte1'asts.
A-2. 7VPinat.iqp. Daniel PY w1tbdraw any part or all ot the
trust eatate vitbin eo da:rs afte he :¥o0118s BIIJa 21, and aay
thereby teminate the t:rwrt J& to the part vitbm-awn.      11i111:cUe at
tbia witb41:aval rigbt aball be by 011a or 110ra written instrwDanta
delivered. to the trust:8e within the 450-day period. :If or to the
extant that Daaial does not exercise ~is withdrawal rivht, the
trust shall continua until Daniel becoaea ega 30 or 4iea before
that ~9a, at which tiaa the trust eetate shall be distributed!
(a)    To Daniel.
(b) If Daniel ill not than liViJ\9, ·to such one or mora
persona, corporJttiona or organbationa (including Daniel's estate),
aa Daniel eppobta by a will which apecifioally xef.n-a to this
poilu: -of appolntlllant. If or to the extent- that Daniel does not
effactivaly exercise this paver of appointment, the txust ilatste
shall lla cUstri,J,uted:
(1)    '1'c:1 Daniel's daaoendanta, ·
(2)   If none of Daniel's de&C1lftdants is than t"ivinq, to
truato~a•    deaoand&nta.
EXHIBITB
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(3) If none of trustora' duoendanta 1a tben livLnCJ, to
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trustor•' heira.
A-3. r•mant pf • • • •          If Daniel I. vill oontaina no contrary
4Jzact our the trustee aball pay troa tba UWtt estate tba e``tira
iDCI'. .ant .1.r1 taxea paya)Jla by raascm of Daniel 1 a death· ( inclUd.l.ftv
r\t                   llnY interest or penaltiea thereon) to tbe extant (if any) tbat tbe
total of aucl:l taxes is qreater tl:lan would have been illjioaed if no
,,....
!''"'~=               port.ion of the t:zust estate ware taltan into account in datansinbq
!~\J
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0
aucb taxes.
B.  CONTINGENT TRUSTS
.                           .
``~1,1~
..
N
0
B•1.    frUit• "lfbHBhOd, any portion of a trust eatate upon tbe
trusts taraina on (ot.beJ: tbu a port:ion witb4l'&vn by Dalliel
pursuant to Pu-avzoapb A-21 w'biob would be distrilNtable to a
0       benetioiaxy wo J.e under ave 30 Gl' to a banafioiazy no 1a under •
le;al dieability instead aball ~e distributed to the truatee of a
ContlnCJant Tr:uat (unleaa othenrba dir8Citecl by tbe valid aarciae
of a powu of apPointment) •          Bacl:l blmef!c:iazy' a portion ao
distributed ab&l~ be bald ADd edminiaterad aa tbo initial trust
utata of a aapu-ate truet for tba !lenetioiary. Rowevw, if a
Contin!Jant ft'Uat b already in axiatanoa for that llanatioiuy, any
ad!Utional portlo11 to be c1!atdbutecl to the trullt. . of a Co11ti119eat
'l'rUat tor the beaefioiary aball be addM to the trust: eatete ot the
exi•tin~ contingent Trait.
B-2 • Diat,ribQiiiona.      "l'be inCOIIe of each contin9eat ftllat aay be
aCCWDulat.e4 and .J"eteined, in whole or in put, or the truatee uy
distribute to tba beneficiary for Wboe tba truet was a.t&bliabad,
free tbe to tbe ao aucl:l or all of tba truat estate ••, 1n tba
truatea 1 e diac:retlon, ie in the beneficiary's beat 1Dteresta.
B-3. Temination, Bach continqent Trust aball teninate when tbe
beneficiary ~or Wbom the trust vas e.t&blisbed baa baooaa a!fa lO
and ia Wider no 18'181 disability or upon tba !lenldiciary'a aerlier
death. Opon t:B%'11ination, the trust estate sbllll be cliatributedl
(a)    To the beneficiary.
"(b) l t tbe beneficiary is not than living, to auab one or
:acre peraons, c:c;p:porations or org'&nbatiou aa the banetiaiu-y
appoints by a will wbicl:l specifically ratan to thie pover of
appointment.     1:1: n~ne of the baneticiaxy•a deeoan4ute iB tben
livin9, this power may .not lie exarciae4 in favor of the
benafioiuy tba beneficiary's .State, the beneficiary'• cnclitora
or the cradtton ot tha banaticlary'l oatat.e. If or to tbe tUI'tant
that the beneficiary c!oaa 110t effectively exercise this power ,of
appointme11t, the trult estate aball ba distributed:
{1)   To the beneficiary's dascandants.
(2) I~ none of the beneficiary's desc:ondallts is than livin.,,
to the descendants or the baneticiary's noareet anoeator who waa
one of t1'1.11Jtors' descendiUits and wbo has ducandanta then 11ving',
(3)     If none of tlleaa peraona ia then liv1n9, to truetora,
cluoendante.
(4) If none of truet:ora' deaoendanta 1e then livin'l, to
trustor&' hairs.
C,  DIS'l'RZBOTIOMS
c-1, J;tiatr1butipna 1;Q pr Cgr ttaneflgbriea, During the t112:11 of a
trust,· IUIY diet1'ibut1on to be ude to a beneficiary cr- the trust
may be -de (1) to the blmeflciuy, (ll) i t the buafioiuy ia
under a legal disability or if tbe tlNst:ee det.or:ainu that t:be
beneficiary 1a unable to properly manage hie affaire, to a paraon
furnishing support, uintenance or eduoaUoa for the beneficiary or
vith whDIII the ~Mneficlu:y ia roe1cJ.in9, tor expenditure on the
beneficiary's behalf, or (U1) to a 0\lBt:ocUIUI tor a minor:
baneUciary, as aeleot:ed by tile tzuatee, under the tJn1fol:lll Gifts to
Xinore Act: of any state. Al1:a:lmllt:ive1YI the trustee 1118Y othervias
apply all or a put of tho ct1at:dmition for tbe l:lenaf1oieaoy's
buetit. Bovaver, 110 nob diat:rilRJtion shall be •ada to a trustor,
to any IIJIOil&e of a uu.ator 1 or in a.ny •anne:r that atecbarges a
leqal obligation ( inolu41119 an e~bllgat:ion of INJIPOR) of a trustor:
or lillY spouse oC a truator. 11rtt eli atribution under this paraeJ:raph
shall be a full diacbai:9B of the trustee vitll respect thereto.
c-2,  yat Int.anst• pf l!anpt'fclary, In IIAkintJ 41at1'ibutiona in.
tho "beet int.eroota" ot a benet oiaaoy 1 the b'ulltea may c:anaider t:be
aqe of tho beftaficiaaoy, tba ooet:.a of thB benaClciary's auppo:rt,
maintanuce, educatiOD ud ~ort without rlltJarcl to any other:
r:eaourcea available to the beneficiary tor theaa purpoaaa, the
effect of any distribUtion upon the inca- aDd U"&n8fer tax
liability of the l:nmefioiarY or of the trust, and any otbar tactora
de11111ed relevant 1Jy the 1:r\latoe,
1),     O'FFIC:I OP TRtJS'rE!
D•l,                         Cv-fr!lstel.
sucapMr IJ.Irullbp.           '1'b8 following- pravieiona
shall apply to each separate trust established under this trust
eiJZ'eement:
(e) sucpesaor 'l'rpatae, Should Andy I. Weiner or Katherine
Priedaan weiner cease to act aa trustee, for any reaaon, the ona
raainlntJ aball continuo to act ae trustee. Sbould l:lotb Andy I.
Weiner and ttatherina Frie4mlln Weiner ceaaa to aot: ae trustees, for
any reason, t:ruetora appoint Bayle Weiner orullol aa auccaaaor
trustee. .
-3-
(1::1) APPpir¢mant ot Sp;c;aa1pr TZ:Mte• by 'l'nu•Sif:· At any tillla
after ;ualifyinG as U\Jataa, IU\l' b:Witee uy appo t a aucc::ea•or
tr:ustaa to act l» his place, aitbar ilaDadiately or in the future
upon any stated oontincJenoy, and aay tbe1'eby suppl-ut the
provisions ot subparagraph (a),
(o) Appgint:Jpant. gt: Spcgaaagr :Datea by Banafic!arig, If at
any time there is no U\Jstee acting and none baa been appointed, a
majority of the beneficiaries (acting throup the benaficiaxy's
natural or letal vuucUan 01r la9al zoepra&antat.ive, ih tba aa.e of
a benefioiery under: a 1119•1 cUAbility) wbo llipt then be e11titlad
to receive a dist.ributiOII fro. the trust eatato shall appoint a
successor trustee.
-
0
(d)     ADppint;mMt pf Co='!'nJ&liat.        Tbe    t.ruatee
unanimouBly if mcn:a thiUI one) mey appoint one or more co-trustees.
(actinv
0
{o)    W'IJo Nay aa Appoint;.tO..    A sucoaaaor t.ruatee   ~   oo•trustae
may l:la any individwal, bank or trust o0111pany and may be d011icilec!
anywhere.
{f)   Prgqpdpre fer Af'plntaant;, Appointment abaU be ude 'by
~ittan   iDsti'UIIent. tile ritb tba trust ncorda.          Any auob
appointment may be cbantecS or revoked prior to the data it bec011aa
affective,    Any nob appoint:wlent ·lll&y be limited in uy aanner:
deemed adviaule by the pct¥11011 aald.nv the appoillt.ent, includilltr
Cor ~le, reat.rictim.r the PGWR over dietributions as nacasaary
to avoid the illpollitian of any t.u upon the tnaat, the appointee or
the appointee • a aatata.
D-2, Batianatlgn gC zruat;g. A U\Jatee . .y resign .rro. a trust
without the neo..aity of BnJ court proceeding upon aeettnq tbasa
conclitionll
(a) lfSl.t.ig§, At l.eaat 30 up• written .notice (ir not waived)
shall be qiven to eaCh beneficiary Wbo might then be entitled to
receive a distribution troll the trust utate. I f a Rerlaficiary is
under: e leqal diaal:l111t;y, notioa aball be given to (or waived by)
the benefioiary 1 a natural or legal vuez4ian.
(b)   Acegpntins.   It ancl to tho extant: required by tbe
successor trWStea 1 an accounting for the a41111niatration of the
trust aball ba gl.van to the ncceaaor tru.tea.      Tbe successor
trustee shall be fully protected in relyinq upon such accauntinv.
O-J.    Bights   And Liabilities.
(a) Bgnd Hpt. Bquire4, No bond or other security shall 11e
required of any truataa.
(lJ)   Liabilitips. This agraBII!ent aball always be construec1 in
-4-
favor of the validity or IUIY a~ by or Olllillsion ·at any. trustee. A
trustee aUl not ba liable tor any aat or aaiieaion except in tbe
case of grosa negligence, batt faith or fraud. 8peoit1cally, in
aaeessing tba p~lety or any invaetaant of a trust estate, tbe
overall pe.rfonance or tlle entire tnet eetate eball be taken tnto
acoo~mt.
(c) COJ!Rinsatipn. Bach tr'ueteo ehall ~e entitled to receive
reasonable compensation tor services actually renderelt to a truat.
E.    ADMINISTRATION
1:-1. General Pgyers~t ll'n!Jtaa. To carry out the trust purpoees
but aubjeat: to any l i tatione stated alaeVbere herein, the truatee
or eacb trust sball bave tba following powere, whlell aay be
exercised tree froa court aupenielon, and WbJ.eh &ball exist until
all or the trust utate has been dlsb'ibuted:
(a) TrU!!t. ll!tat.a. ':rbe trueteo IIIII)' invest and reinvest all or
any part of the trwlt estate in property of any daecription and say
retain as a part of tbe tl'Wit utata any pzooperty acquired at any
time and 1n any •~r. 8pec1t1cally, and without regard to the
provielons ot any applicable state lawt tbe tn1tee aay retain, or
invest IUI4 reinveet in, property unprOCNativa of iDCGIU, sbarea or
open or clolacl and inveetltent tru.eta or OOIIJNlnlea, vastinv aeeete,
and any other pz"Oparty, regardlese of location and without regard
to any roquiruent of dlve.rsltioation u to ltinli O't' -o'IU\t.
(bJ  1\!sina§l lld;IIZ'Bil'· fta trustee aey continue oparatian
ot any buainaaa entity, in any bWiinoas ton, wltb all Ol:' any part
or the trust estate, and aay reorganize or liquidate any such
entity at any time.
(c) 'l'ranefors. I..qana. 'lbe trustee may leaae, sell, transfer,
or enowabarill any 11anner (includinv with purehaao 111oney mortgagee)
all or any part of the trust alft:ate, and uy loan or :borrow 110noy
in any aaDJie.r (inolucling by joint and several obligatiODe) vlth or
without seCNrity. lubjeot to tile provisions of Paragrapb E-3 (a),
tho trustee aay purollase oseete troa ttie estate or a trustor and
aay loan tunda to the eetate ot a truetor at such rate ot .intereet
and with aucb aecurlty as the trusteadete~nee to be in tbe beet
interests of the current b.ncfioiarih of tba trust.
(d) pealingg With :BI111;14 Partleg. 'l'be trustee ``«Y deal with
any person or entity rag&rdlesa or any relationship or idantlty at
any trustee to or with that person or entity and may hold or inveat
all or any part ot the trust ..tete in co-on or undi vi dad
interests with that person or entity.
(e) Agants. l!lployee~. !rha ~tea 11ay employ and COIIpenaate
agents and othar eaployeas 'Wicl may delegate to them any and all
discretions and paver1.
(f) ra;titipnt. piatribpttMa, The trustee ••Y partition all
or any part of any lntareat, aay pay and receive suab aoneya or
propertiea as may be neceasary to ~aliaa clUterancea, and in so
doing (i) lii&Y 1181Ca any distribution or all or any put of the t.nat
estate in any aanner (including ca.paaing !hares dlffa~ently) and
(11) ...Y evaluate any property, whiob valuation shall be .binclinv on
all beneticiariaa.
(9)   c:lai•a Gcmt;rgyorllll,    fte tzuatae may maintain and
defend any claill or oontrovaray by or aqainet the truat without tba
joinder or conaant of any ~riciary.
(h)    A44itignal pqwara. In addition, the trustee shall have
all :t'ighte, pdvile,ea and power11 now or hereafter qrantad to
trustees in 'l'eXaa, includinv those granted under the Taxu 'l'rust
Code.      Any e=-equant ltMJlalation or ~btion axpanclinv or
11Jaiting the rights, priviltMJ•• and powers grantee! a tnstee ehall
apply to all trutta hereunder Ulllaaa 'tba b'uttaa ala~ not to bavt
eucb legislation or regulation apply to a particular ~at by a
written inabnlaant tiled vith t'ba tnlat rac~:``rdt,      Bowaver, the
provbiona aa4e for the various beaaliciariea under this trutt
aiJI'eamant ve exol11aive. AllY statute that purpcxrta to IAlarva the
class of banefioiariea to Vban distributions ID8Y be aada or the
purpotee for which diatribllti- aay be ID8de eball J\Ot apply to any
trust, All b'uat powers ..y lMt exercised upcm such tU'IIa as the
trustee deems aclvia&bla and aay affect truat propart1e• for any
lenqtb of tille ~"arcllsaa of the "c!ura1:1an of the trust. Ganarally,
and INbject only to the ter~Ds of tbis trust avra-ant, the trustee
shall hold, aanare, control, wsa, inveat, reinvest, ancl cliapoae of
the ti'U81: estate to the sue extent aa i.t the trustee ware the tea
aiaple cwnar thereat.
B-2,     Principal ADd .ln!iSIII.I pat;aplna1;iqns, 'the receipte,
diaburaeaante and reaervee of aaah tra1t _.y be allocated, on a
c ..h or aocraal ba•i• between principal and inoo•e in the
trustee's discretion without regard to the proviaiona of any
statute.    To the extent the t2:Uatee doee not exercise this
discretionary power, the previsions of the TeXas TrUst ~ode shall
control.
!-3.   BDBtriqtiong gn tbe E¥Prei•a of Carta1n egwera,
(o) paaUnsa with 'l'fU!It Bstata, No povar granted the trustee
shall be oonatrued to enabla any ~son to purahaaa, exchange, or
otherwise deal with or dispose of any trust estate tor lass t.ban ~
adequate consideration in IDOnay or •oney 1 a worth or to authorize
loan• to any person vith~:``ut adequate interest.        No part of any
trust utate may b1 (i) loaned to a truator or to any apouse of a
trustor or ( 11) BPJilied to tbe ~:~ay.ant: of praai\1118 an ~:~oliciea of
insurance on the life of a trustor or on the life or any apouse of
a truster.
dis~et
(kll     Digtrllm1;ians tg or Cpr :zxustao,       Anr
power to uJte
anary 4istribut1ona to or far the benef t ot a parson wbo
is ...vin9 as trustee of a trust (inaludtng distributions to the
p81'8011 1 s spouse and 4iatrillut1ona 1n diacbaqa of any lqal
obligation of tbe person) shall be exel'aisa.ble solely t~y the
trustee 01: trustees other tban that: person, If no other t:ruat:ea 1a
than serving, aucb pRVel' shell not: be exuaisahle.
B-4 • Boloaq1 1nd polaqationa ot Pgt«ara. Any power 9J:ant:e4 to a
trustee ••Y ba zoeleasec1, in whole 01' in part, t811J1Qn:rily ar
pell:'ll&nently, BICI;Iept aa pravidel! in PAI'agl'apb E-3, any such pover
uy be clel~atad, in Whole 01' 1n part, taporarily or penanontly,
to •I'll' oth..- t:rustoa than aatinv. A :raleaea 01' dal8911tian llhall be
by v:ritteJI inatru:llent filed with the raccmSs of aacb t~t: to vhicb
the release or dale,ation applies.
P.      J)El"'Dft'::tOfiS AND GBHBRAL PROVX&IONS
P-1. 'f.FUpt Elz..Pta• '"l"n'st estate• 1U&ns all assets, bovavu and
whenever acqu eel (incluclblg ihCOIIe and aoCNIIUlated incolle), Vhicb
:uy belon9 to a trust at anr given time.
r-2, PMAAndi"H· •oaacel\danu• 1Uan& tbe lagitilaat:e ahUcl:ru of
the person or pereans daal.faated and the legitimate 11Pal
desoendante of such cb.ilclreJI, U4 inc:luclea any pU'aon adopted
bet ora becoaing ave 11 and ths a«opt:ad pcrson • s cluceJ!danta.      A
posth11110ua ohild shall 1Ma c:onsiclered as living st the clsatb of his
parent. Whenever a 4ist:r1but1on is to be made to tbe deaoandanta
of any paraan, the property to be distrillutecl eball be 4ivi4ad i.nto
aa 11any equal 8haras aa there are living' chilcl:ren of the person and
deoeaaad obilclran of the puaon wbo 1ert. 4eaoandant:a wbo ua than
living. Bacb living abild llbel1 talca ona ab&l'a ane tba a!ua:n of
each deceased abilcl 8ha11 be dividad aaong bls then livinq
deaaendanb in the sua manner. •trustor&' deacandanta" bloludea
only tboso persons descended from both truators.
P-3.    Ba.lu· Any diat:ribution to ~a :ude to the "heirs" of 11
parson &hall be made to tho individual• Wbo would bave tnheritod
the parson • s psr:sonal property if t!le pN'Son bad died intestate at
the ti11e the diat:rlbution ia toM .ads, clomioileclin Texu and not
mar:riecl, under the leva of 'l'e'Xea in foroo on tbe effective elate af
tbie trust a~euODt, with tbe abares of takin9 detenai.Jied kly those
lava. Bowevar, both truatore and any 8PO\US4I of a truator eball be
deaed to bave c!iacl prior: to tba tble tbat any auob 41stributlon 1B
to be made, A d!atr:ibution to atr:wrtore• baira" shall be 11ada to
the heirs of Andy I, Wainer:.
r-4. Internal Bev•nue COda. "%nt:ornal, Revenue COda• moana the
Internal Revenue COde of 1!18&, aiJ uan4e4, ar cor:raapondinv
proviaions of any subsequent federal tax lava.
-7-
P-5. SliihB£ 'l'NTUI. The use o~ any gander inolucl- 1:ba otber
gander&, and tba uaa of eitbar tbe aingular or the plural includea
t:Jia otber.
F•6. SpMdthrif't PJ'pylaipn. lfo banaticiary &ball bave the powu
to anticipate, onoabe.r, or ta-anafer bia 1ntueat ill any tl'Wit
eatata 1n any .amu. lfo pan of any tzuat eatate &ball· 1Ht liula
tor or charged witb any dabt:a, contracts, l1alJiUtiea or tort:.a of
a banetioiary ol' aUbjoot to aaiaura or other procaaa by any
creditor of a banefioiary. Nothing in tbia paragraph aball be
conatruad to lbdt tba otbezv:l.aa valid exercise of a power of
appointment or rigbt of withdrawal given by thia trust ayraa.ont.
P-7,  :rex11 Lay Aapliea. '.l'ba aitua of the truata aat&bliahed under
tllia trust agre01D811t ia 'l'eXaa.     Rberevar poaaible, tbe lava of
Taxaa ahall apply to the con&trl.lction, adniniatration and validity
of aaob truat.
P•B , Kaxipwp 'l'aEJI gf 'l'ruata, lfo truat shall continua for a period
longer than a1 yaua after the death of the laat to die of truatora
and all of truatar.• daaoondanta who ere l~vinv on the affaotive
date of thia truat aqrea111ant. AllY ~t atill in foroa at t.ba and
of aucll period ahall tenainate, and the truet aatate aJI.all be
distributed to the banatioiary for vboa the trust waa eatalJliahed.
P-9,   i!ZWV''   pt:; Apppintpumt J!Drsilebla by Raneflpierlaa,
exeroia ng a power of appointment vivan to a beneficiary by thia
:tn
trust agreaent, the benaticiary . .Y appoint the property aulljeot
to the powa1; outr1CJI:It to the appointee, in trust, or to a CIWitodiiUI
tor tl:le appointea under tbe 'Dnifana Gitta to H~a Aft of uy
atate. xt t:ba banefioJ.a-cy appoi.JI.te to a ou•todian, be . .lf aelecn:
tlle ouato.Sia.n. I t the beneficiary appointe in b:Wit, be aay aalecst
the· truatae or b:Witeea, aay eat&bliab aucb adllinlst.J:ative tenaa
for the trust ae he de81Da appz"opriate, and aay ialpoae lawful
spendthrift restrictions. Ke aay giva the trustee dfsoretionary
powera over the inc011e and principal, an4 may create a truet that
baa several peraieaUila dietrilNtaea. Be IIBY create life intereata
or ctbar l1aita4 interest& in soae appointees vi th :future interests
in favor of othiiZ' appointeu, aay appoint dif:t81"81'1t typea of
interuta uonv the eppoinceea, and aay create new pcwara of
appointment in a uutae or tzouataes or in any appointee. Ra aay
iapose lawful conditions on an appointaant and,, in general, may
appoint to or aaonv the appo1ntaea in any lawful JIIUIII&r.
In detenining wbatber, in what IIIIUU\IIZ' ancl to what extant a
testamentary power of appointment has bean exercised by a
beneficiary, the trustee aay act in reliance upon a court order
admitting an inetruaant to probata as the bana:ticiary'a last will
or an order findinv that the banetioiary died intestate. Onlaas
within six montba after the beneticiary•a 4eatb the truatoe baa
actual notice of tha existence of procaedi1198 to probata a will of
the beneficiary, the trustee shall aaauae that tbe beneficiary died
-8-
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co
!;:J
1::~
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0
'it
en
,.,
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r 'l
intestate.       Tbe foregoing provisions are intended to expedite the
p~ompt      and ett ioiiUit adlliniatretion of the Uullt and to protaot the
~'
t:.rustee troa any aot.t.on tllken or diatrUnltion JUde ill accorcSBJica
r:r.~l;ll
witb tbeee provbiona. lfotblng 1n tllia paragrapb ahall liait or
~:~
qualify any power of appointllant: given by thia truat avre•ent o~
any right wllich an appointee or talcer 1n default ot appointaent aay
t:;\j       ~"!
have against ·~ person receiving a distribution troa the trustee
ill.        t:     i~respective of the place of p~obata o~ of tba ti•• of diaoovary of
! "'I~      c      a vill exercising. the pover ~ any other aotion talcan in the
C4~J               banefioiar.y'a estate.
~
~:~:~       ,.            G.     ACCI!P'l'MCB BY TROS'l'EB
````:1
...,
1\     By eign1J19 tbia trust aq~eiRient,  the trustee (i) accepts tbeae
truata and all of the ri9hta, povara and dutieo attached to the
"'"'   office of twataa aa provided herein, ( UJ agrees to aa.rva as
"      truat.. of the Daniel staveD Wainer 1116 ft'~aat and of any
contingent 'l'ruata wtaicb aay be aatabliabecl under t:!IJ.a trulft
afTBeaent, (iii) ecJcnovladgaa receipt of tba property daacribad in
Attachaent ~. IUid (iv) eqreaa to bold and adainiatar e&cb trust
estate in aocordanco viti\ the ter.a of thia truat agrae•ant.
Tbis t:ruat BtJreeaent is executed aftaotiva as of tba          :roth   day
Of   Ma~oh, 111V6,
Alidy r. wain•~, T'r\iator and
Tr\Uitee
ia£barlie Pdedaan Wainer,
!r\lator and Trustee
/
-9-
·--------- -                                     - -- - - .
~
,_'!l      A'l'TACIDCEN'l'
TO               `` ST``tJIER 1f9 6 'l'ROST
'1'HB r:wri...,
CON'l'RIBD'l'IOJIS
!o
~
$1.00
,0 c~
...
c"'
iildyl. lunar, TrUStor and
TrUstee
iat&arlne ri'li&n lleliier •
!rU&tor and ~tee       .
II
I
I
i
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I                            -10-
!__________________________